by Nik Nur Aisyah Humaira Nik Mohd Hussian
Introduction
Islamic law divides crimes into three main division based on the punishments enforced, namely Hudud, Qisas and Takzir. Hudud law is not something odd in our country’s legal issues nowadays. According to Al-Mawardi in his Kitab Ahkam Sultaniyah, 450AH has defined Hudud as specific punishments determined by God for doing things that are prohibited and leaving things that are commanded because of the human nature that tend to be dominated by lust, lead them to neglects the torment of the hereafter by simply pursuing the pleasures of the world. All the punishments were already addressed in the AlQuran as well as the Sunnah of the Prophet.1 Abdul Kadir Audah said implementation of Hudud law is an obligation as it is a right of God. Allah’s right means that the implementation of those punishments cannot be dropped and excuse either by individual or society. “Hudud involves the offences of adultery, qazaf, theft, drinking alcohol, rebellion and apostasy. As Hudud punishment has been determined by Allah, it cannot be added or subtracted from that provision and cannot be changed until the day if the judgment” (Majlis Agama Islam Selangor, 2015).2 However, it should be noted that the execution of the Hudud punishments is not as easy as other punishments like Qisas and Takzir. According to Professor Emeritus Datuk Dr Mahmood Zuhdi Abdul Majid, Office of Fiqh & Usul Fiqh, IIUM, said in his interview session with Berita Harian Journalist, “The Hudud process is very heavy and there are a very strict conditions to be fulfilled in order to hand down the punishments of Hudud. It cannot be executed if there is a confusion in the case. If there is even a little confusion, the case will be removed”.3 For example, in the case of theft, it has to be enough nisab before a person’s hands are cut off. However, if he steals something that is placed in an appropriate place due to someone else’s carelessness, this matter cannot be carry out under Hudud.
1. Al-Mawardi, The Ordinance of Government, AhleSunnah Library
2. Majlis Agama Islam Selangor, Hudud : Satu Penjelasan, 2015
3. Professor Emeritus Datuk Dr Mahmood Zuhdi Abdul Majid, Yayasan Dakwah Islamiah Malaysia, 2015
Thus, we can understand that the punishment outlined is not just to punish, but to discipline the offender. The main purpose of religion is to guide, and legislation serve as a last step to enforce the purpose. If a person has been educated properly and still does not abide to the commandments, he should be punished severely. However, it requires a strict burden of proof in order for such a heavy sentence to be carried out. To illustrate Hudud law so that we can understand the discipline behind it, Hudud law is like a hanging a cane at a high place so that our children can see it, but the can was never taken down because they were already afraid of the cane. Islam is a religion that emphasises discipline, unlike the Western system than only focus on freedom. When people are too free, they lack discipline. Now that we can see the surface of Hudud law, the question is can we practice the inner content of Hudud law in Malaysia, a country that consist of multiracial citizens that revolve around the complex constitutional legal framework. Let’s dive deeper into this topic
Significance of The Practicality of Hudud Law
The practicality of Hudud law has been emphasise long ago even since before the independence of our country. However, why it is so important for us to implement this law?
1. Obedience of Commandments of Allah SWT
Mankind is the creature of Allah that was created with full perfection and equipped with common sense to build and prosper the earth of Allah SWT by establishing justice, peace, wellbeing and goodness on the face of the earth. The implementation of Hudud law which is one of the rights of Allah serve the main purpose of human being creation, to worship Allah SWT by doing good and preventing evil. The authorities for this significance have been mentioned in AlQuran, Surah Adz Zaariyaat 51: 56, “And I did not create the jinn and mankind except to worship Me”.4 Thus, we as the mankind that was created by Allah need to serve our purpose to worship Him alone by leaving all the prohibitions and following all his command including the implementation of Hudud law which is obligated to all of Muslims.
4. Surah AdzZaariyyat, 51:56, Sahih translation, Quran.com
2. Preserve the Maqasid Shariah
Islam considers criminal acts to be an offence that must be punished because it violates both the rights of Allah and human rights. There are five shariah purposes that every individual Muslim need to take care of namely religion, life, intellect, property and lineage. Islam truly emphasise on these values and any violation of them is a crime that need to be punish. In order to maintain these five purposes of Shariah, Hudud as well as Qisas and Takzir have been created.
For instance, in order to protect the first value which is religion, there is a law and punishment about apostasy specifically to prevent the Muslims from false teaching and from becoming apostate. The apostate will be told to repent first and if he refuses to repent, then death penalty will be imposed on them. There is the word of the Prophet SAW which means “Whoever changes his religion, then kill him” (Hadis Riwayat Al-Bukhari). There are more examples regarding on other values in Maqasid Shariah, but I will only share about the first value. All in all, the practicality of Hudud law is important for the Muslims in order to preserve all the values in Maqasid Shariah.
3. Preventing Crime and Protect the Community
A punishment is made to prevent the society from committing crimes. Thus, criminals need to be punished so that society can be protected from any kind of evils.
“Hudud is a prevention determined by Allah SWT to prevent people from committing crimes. Lust is something that is ingrained in humans, which can usually make people neglect the warnings of Allah SWT due to the influence of immediate pleasure. Therefore, Allah SWT made Hudud punishment a deterrent to criminal acts because people will fear the pain of punishment and do not want to be ashamed. With that, all the prohibitions of Allah SWT can be avoided, and all his commands can be obeyed”. (Al Mawardi)5
5. Al-Mawardi, The Ordinance of Government, AhleSunnah Library
4. Educate the Society
According to Majlis Agama Islam Selangor in the book of “Hudud, One Explanation”, it is stated that the execution of heavy punishment of Hudud must be carried out in front a group of people as an example of strict practices of a country. This kind of practice can educate and prevents people from approaching those offences. Furthermore, it can also protect society from corruption and purify them from the sin and evil.6
Factors that need to be considered in Practicing Hudud Law in Malaysia
Some people might say the implementation of Hudud does not have to take a lot of effort, but the reality is, there are a lot of factors that we need to consider because it can become an issue later on, Among the factors are:
1. Stereotype about the Cruelty of Hudud Punishment
Some people said that the punishment in Hudud law is too cruel because they have been influenced by the mentality of liberals. They also said the punishment is to cruel for a religion that is said to brings mercy and peace to the whole world. There are non-governmental organisations run by liberal minded Muslims against the implementation of Hudud punishment in Malaysia. They Believe that Hudud punishment does not provide justice, deviates from the Federal Constitution, violates basic rights, creates discrimination between genders and oppresses society. Sisters In Islam said in one of their press statements in 2011 that they undoubtedly oppose the adaption of Hudud law because Hudud law is not parallel with the superior law of our country, Federal Constitution, it discriminates against women, it provides maximum punishment without room of repentance, and it ignores the basis of the religion.7
This is the phenomenon that is hitting us now. Many Muslims today see Islamic law with prejudice and suspicion, while they do not have a deep understanding of the knowledge. In fact, some of them dare to criticise and insult the law that has been prescribed by Allah SWT. This mentality by a group of people who did not know anything about the details of the punishment becomes one of the factors that hinder us from practice Hudud law without any criticism.
6. Majlis Agama Islam Selangor, Hudud : Satu Penjelasan, 2015
7. Sisters in Islam, Press Statements, 5 October 2011
2. Violation of Human Rights
Most of the people have a conflict with the whipping punishment where some of said claim that it violates the human rights. Whipping is a from of punishment that has been prescribed in Islamic law which is intended to teach the offender and the person who witnessed the execution of the punishment. The punishment is more educational towards the society rather than committing despicable acts and contrary to Islamic law.
On 9th February 2010, for the first time in the history of Shariah legal system in Malaysia, three female offenders were sentenced to 6 lashes in accordance with Section 23(2) of the Federal Territories Shariah Criminal Offences Act 1997 for the offence of extramarital intercourse. The sentence was handed down by Shariah High Court of the Federal Territory of Kuala Lumpur.
After the execution was done, some women’s non- governmental organisations protest the execution of whipping against Muslim Women, claiming that then punishment is against the Civil Law Section 289 of the Criminal Procedure Code which prevents whipping being carried out against women.8
The method of execution of whipping according to Syariah Law needs to be explained to the public because it differs from the existing method of execution of whipping. This confusion arises because the Muslim community is confused with the method of execution of whipping according to Sharia Law. Whereas if examined, the execution of whipping according to Syariah Law is more humane and preserves the shame of the offender. For example, the execution of each whipping must be with moderate force and the officer carrying out the whipping sentence does not raise his hands above his head to ensure that the offender’s skin is not injured or chafed due to the whipping applied.
In contrast to the punishment of flogging according to the Civil Law which is more extreme and causes the offender to suffer severe and severe injuries. Civil whipping leaves the offender naked except for a thin apron-like piece of cloth tied around the waist and the offender’s backside is left exposed. This significant difference is enough to show that Sharia Law still takes care of a person’s shame and maslahah even if the individual is found guilty.
8. Ariffudin Ishak, Sebat: NGO Wanita Bantah, Feburari 2010
All in all, the frequent issue that arise when we talk about the implementation of Hudud law is about whether the punishment violates our human rights.
3. Multi-Religion Society
The next question arise is about the suitability of Hudud being implemented in Malaysia, which is a pluralistic country with multiple races, religions, customs and so on. Most likely there will be no issues if hudud is implemented in a country where the entire population is made up of Muslims. This is because Muslims have been educated with Islamic teachings and are used to practicing a way of life based on Sharia. Furthermore, their education system, administration and local customs are all based on and characterized by Islam. It is different if the population of a country consists of plural society and there are a number of non-Muslim residents. Of course, there is doubt among them and even some of them will openly oppose the hudud law that will be implemented in Malaysia (as manifested by one of the political parties in our country, the Democratic Action Party (DAP).9 Another hot issue that is discussed within the framework of hudud is regarding the punishment of stoning to death against adulterers, taking into account the legal situation and the Islamic society which is very different from the current situation in the heyday of Islam.
These are among of the issues regarding the view of the multiracial community in our country that being one of the factors that we need to consider in order to apply Hudud law.
Management of the Practicality of Hudud Law despite The Challenges
Despite all the challenges from the issues arise, there must be a solution on that, and it cannot be done by only one person. It takes the synergy from all group of people to ensure the successfulness of this practice.
9. Zulkifli Hasan, Polemik Hudud di Malaysia: Satu Tinjauan Ringkas.
1. Education and awareness
On the first stage, we need to start with something light by promoting the understanding of Hudud principles within the communities. We shoul emphasise on the purpose and ethical dimensions of the law. Among the factors that lead to that negative stereotype that I mentioned before is due to misconceptions about hudud law, including the statement that hudud law is not suitable to be implemented in a multi-religious and multi-ethnic country like Malaysia. This happens because the understanding of the Muslim and non-Muslim community regarding the implementation of sharia is still low. Islamic law is not just hudud. Therefore, in this first stage, understanding, awareness and appreciation of Shariah which includes belief, morals and practice (worship and muamalat) need to be instilled among Muslims in this country. Muslims need to understand the principles of the implementation of sharia which prioritizes justice in all matters. Muslims also need to understand the principles of Shariah implementation and the need to develop Islam comprehensively in implementing it Islam in total.
2. Appropriate Training for Authorities
After instilling the understanding among the people, we can proceed to a bigger step in order to implement the law by providing a comprehensive training for judges and law enforcement on the application of Hudud law so that we can preserve the justice and mercy that have been emphasise as the purpose of the punishment. In order to ensure that the implementation of Hudud law in Malaysia runs perfectly and meets the objective of Shariah, it needs to be managed carefully and attentively. It should be noted that the Hudud punishment will be canceled if there js even a slight doubt. Plus, the judicial process during the ongoing proceeding needs to be constantly monitore. Therefore, a monitoring committee shoul be propose in a state and national level. Training programs for those authorities also need to be designed and carried out smoothly before implementing Hudud law.
All in all, both the authorities and the society play a big role in ensuring that we can practice Hudud law in Malaysia despite all the factors that can be an issue on the implementation.
Conclusion
In conclusion, Hudud law is a right of Allah and we as His servant need to carry out our responsibility in implementing what has been given for us. There must be a significance why
Allah made this task as obligation towards the mankind. However, this dunya is clearly a space of test for the mankind so it is not odd anymore that we have to face different kind of difficulties in being his best servant. All the challenges that might come with the efforts to implemet Hudud law is a test from Allah and we as human beings with a given intelligence have to find an appropriate solution to that. May we all have the patience and motivation to strive for what is important and obligatory toward us.