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| Q & A on the Hudud and Qisas Enactment Posted: 25 Aug 2012 07:27 AM PDT
In countries with a population that are not predominantly Muslim (e.g Nigeria and Sudan), the laws are not applicable to non-Muslims. In countries where non-Muslims are of very small minority or non-existent and where an Islamic state is established (such as in Saudi Arabia, Iran), Hudud offences and punishments are incorporated into the law of the land and apply to all citizens. 1. What is the Hudud and Qisas Law? Hudud and Qisas laws deal with offences and punishments that are interpreted by Muslim juristic scholars to be derived from the Qur'an and the Sunnah (of the prophet). Hudud literally means limit. According to some scholars, the word "hudud" is not used in the Qur'an specifically in terms of punishment. However juristic opinion has reduced hudud to mean mandatory punishment. Under Hudud law, theft, robbery, illicit sex, alcohol consumption and apostasy are considered offences. Punishment for these offences are corporal in nature, involving whipping, stoning to death and amputation of limbs. Qisas (law of retaliation) refers to offences that involve bodily injury or loss of life. The punishment is death or imprisonment, but compensation in the form of a sum of money or property (diyat and irsy) is accepted if the guardian of the victim forgives the offender. In Malaysia both Hudud and Qisas offences are contained in the set of legislation known as the Syariah Criminal Code Enactment. In Kelantan the law is formally called the Syariah Criminal Code (11) Enactment 1993 and was passed on November 25, 1993. In Terengganu the Syariah Criminal Offences (Hudud and Qisas) Bill was passed on July 8, 2002. 2. What offences are covered in the Kelantan and Terengganu Enactments? Six offences are recognised under the Enactment as Hudud offences, namely:
3. What are the punishments prescribed for the offences?
Every offence except zina must be proven by the testimony of 2 adult principled male Muslim witnesses who have not committed any major sins nor continue to commit minor sins. Zina is to be proven by the testimony of 4 adult principled male Muslim witnesses. Zina can also be proven by pregnancy of or birth of a child by a woman not then married unless she brings proof to the contrary. In the event there is insufficient evidence for the purposes of meting out hudud punishments, then the offender may nevertheless be punished by the court with non-hudud punishments. This is known as ta'zir punishment. 5. Can Hudud punishment be reduced and adjusted? Hudud punishment is mandatory. Section 50 of the Terengganu Enactment provides that hudud punishments may not be reduced, substituted, stayed or in any way varied. Nor can the offender be forgiven. 6. What is the difference in the notion of crime between Hudud and any secular penal code? Under secular laws, an action is considered criminal if it brings about serious harm or death to another party or when there is victimization involved. The violation of private property rights, including bodily rights (as in physical assault and rape) is also construed to be a crime. Although Hudud and Qisas are informed by these premises, there are additional areas in the Islamic law which are outside the bounds of these justifications. For example, under secular law, a sexual relationship between consenting adults is not a crime as it does not bring injurious harm to another party. Drinking of alcohol is not a victimizing act, hence it is also not a crime. However, drunken driving is, as it can potentially cause serious harm to another party. The right to renounce one's religion is also not a crime as it is considered a human right to religious freedom, with no repercussions of victimization. In contrast, Hudud law "criminalizes" all of these actions, namely, sex outside marriage, drinking of alcohol and the renouncement of the Islamic religion. Hudud proponents say that these laws are divinely ordained by God. However, the codification and formalization of these laws are mediated by human actions and subjected to human interpretations. 7. How can Hudud be subjected to human interpretations? The hudud provisions have been formed through the opinions of jurists in Muslim jurisprudence. The methodology of interpretation that is used involves ijtihad (independent reasoning) and qiyas (analogy). Their views are further subjected to sanctions through a politico-legal process of ijma or consensus of the jurists or through majority opinion (jumhur). The founding of the four schools of jurisprudence by the four great imams (Abu Haniffa, Malik ibn Anas, Shaf'i and Hanbal) were all in the Abbasid period, stretching from the 8th to the 13th century, or 100 years after the Prophet's death. 8. What other countries have a similar law? Hudud laws were introduced in Pakistan in 1979 under the rule of General Zia ul-Haq. In Sudan President Numeiri introduced Hudud by replacing the old Penal Code of 1974 with the new Penal Code of 1983. In the new Penal Code of Sudan, Hudud offences such as adultery are unlawful and the punishment will vary for Muslims and non-Muslims and whether one was married or unmarried. In Nigeria the northern state of Zamfara was the first to introduce the Hudud law in January 2000. Nine other Muslim-majority states in Northern Nigeria have subsequently adopted the Hudud to a lesser or greater extent. 9. Is Hudud only applicable to Muslims? In countries with a population that are not predominantly Muslim (e.g Nigeria and Sudan), the laws are not applicable to non-Muslims. In countries where non-Muslims are of very small minority or non-existent and where an Islamic state is established (such as in Saudi Arabia, Iran), Hudud offences and punishments are incorporated into the law of the land and apply to all citizens. 10. Is there a chance that Hudud may overstep the legal rights of non-Muslims? In all likelihood it will. As Malaysia is a plural society and where the concentration of one ethnic community is not necessarily confined to one region or state there are bound to be clashes and overlaps in application. For example in any crime the victim and perpetrator may be of different religions. If the alleged rapist is a Muslim and the victim is a non-Muslim, there will be the question as to under what law the charge would be brought about. Under Hudud the alleged male perpetrator may stand to gain because of the impossibility of getting the testimonies of four Muslim male witnesses. Under Hudud, Muslims who commit robbery of property that is valueless in Islam e.g. liquor or entertainment equipment will have a chance of escaping any prosecution. In another worst-case scenario, such as in an incident of gang-rapes, where there are multiple perpetrators and victims (comprising Muslims and non-Muslims), eye-witness accounts of the rapes which may be offered by the victims would not be admissible as evidence as they may not be Muslim and male. In all of these hypothetical cases non-Muslims will stand to see justice taken away from them. READ MORE HERE
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