Tuesday, April 29, 2014

Hudud in Malaysia: Facts in the Context of the Realities - Dr Mohammed Fauzi Abdul Rani

The Islamic Party (PAS) and the issue of Hudud implementation is not new when PAS’ President expressed the intention to table a Private Member’s Bill in the Dewan Rakyat in June 2014 because in November 1993, the Kelantan Legislative Assembly had already adopted a Hudud Bill to be implemented in the state once the proposed Private Member’s Bill is passed at the Dewan Rakyat.
There have been concerns that this move is unconstitutional. Factually, this PAS-led initiative is within the ambit of the Federal Constitution as Islamic criminal law is currently stipulated and practised by the Shari’ah court in all the states in Malaysia and only Muslims are subject to these laws (such as for adultery). Unfortunately, there has been a dichotomy between theory and practice. One will find instances of crimes categorised under Hudud Law but the punishment does not reflect the true exhortations as stipulated in the Quran and the Hadith of the Prophet Muhammad (peace and blessings of Allah be upon him). The Prophet (peace be upon him) was stern when a leniency was asked of a Hudud crime, “How can you intercede when it is a case of one of the legal punishments of Allah Almighty?” (al-Bukhari, Book of Hudud, Chapter 89:6406).
The Ninth Schedule of the Federal Constitution states that Islamic law is under the jurisdiction of the state and it is empowered to enact Islamic Law. The Federal Government has however limited the ability of the Shari’ah Courts to impose punishment based on the Hudud Law. In particular, Section 2 of the Shari‘ah Court (Jurisdiction of Criminal Matters) Act 1965 which restricts the Shari‘ah court's power in dealing with criminal matters even though such power is within the state’s legislature. This debunks some writings suggesting Malaysia being an “absolute secular” nation, when a partial dual system, secular for non-Muslims and Islamic Law for Muslims vis-a-vis the penal code has already been in existence in Malaysia.
Notwithstanding, it is highly pertinent that an ambience of freedom, peace, social and distributive justice, equitable distribution of wealth, eradication of poverty and other parameters of the nation’s socio-economic health is addressed as a backdrop to the application of Hudud laws. The second caliph, Umar al-Khattab (may Allah be pleased with him), suspended the prescribed punishment (hadd) for theft upon those who were found to have stolen any food during the Year of Famine. (Ibn Kathir, al-Bidayah wa al- Nihayah, 4:99). Therein lies the wisdom of early Muslim leaders, establishing and practising Shari‘ah (Islamic law) in its most pure and noble form, achieving its exact and true objectives as embraced in the Maqasid al-Shari‘ah (objectives of the Islamic law). National security and safety of her citizens from crimes related to robberies, homicide and illicit sexual relations was uppermost in the minds of early Muslim leaders. The Prophet (peace and blessings of Allah be upon him) set gold standards for his followers with respect to social peace and national security when he said, “A rider will travel from Sana'a (a city in Yemen) to Hadhramawt (a region in the southwest of the Arabian peninsula) fearing none but God, or a wolf as regards his sheep.” (al-Bukhari, Manaqib, 25, Ikrah, 1; Abu Dawud, Jihad, 97; Ahmad b. Hanbal, Musnad, V, 110-111).
Thus any individual or group that attempts to disrupt this higher state of serenity and tranquility of individuals and families and deliberately fracture the peace and cohesion of the community and nation through heinous acts of killings, robberies and illicit sexual relations are punished severely. These crimes which threaten the social and moral order of the bigger community are seen as transgressing the limits (al-hudud, singular al-hadd) set by God himself and thus have punishments that are mandated in the Quran. Hudud laws which only represent a minor portion of the entire corpus of Islamic jurisprudence with its legal edicts and formulations addresses these crimes specifically. They are unequivocally divinely ordained in the authentic scriptures and the believing Muslim is in no position whatsoever to negate it. The Shari‘ah is the epitome of the Islamic spirit, the very manifestation of the Islamic way of life based on an unqualified submission to the will of God. “...For each We have appointed a divine law and a traced out way. Had Allah willed He could have made you one community. But that He may try you by that which He has given you...” (al-Qur'an 5:48). Its implementation or otherwise is within the jurisdiction of man, Allah’s appointed vicegerent on earth, taking into careful consideration some of the critical factors and context which have been alluded to earlier.
Islam, meaning ‘submission’ – however awkward such a notion is to secular liberal thinking – is acceptance with a free conscience both the tenets of the faith and outwardly the injunctions of the Shari‘ah which encompasses formal ritual worship and the regulation of personal and social mores based on sacred texts.
Believers of other faiths, liberal secularists and secular atheists need to understand that Islam is the governing principle in every aspect of a Muslim’s life to a degree seldom seen in the adherents and practitioners of other religions. Islam is not just a matter of rituals and worship; Islam is a complete way of life. For those who cannot or will not accept the crucial importance of this most important reality in the life of all Muslims we can only say, hopefully without insult, please stay out of our space.
As Muslims we have no difficulty accepting that non-Muslims have different beliefs and live their lives differently than we do. We respect and celebrate religious plurality and others claim to their exclusive beliefs and teachings. Please show us the same courtesy.
In Hudud Law, the punishment of adultery for example is very severe but the process of conviction is extremely difficult and virtually next to impossible except in a persistent unqualified confession. The standard of proof in Hudud is extremely high, that is beyond any shadow of doubt. The prosecution has to prove the charge with certainty and any benefit of the doubt must be ruled in favour of the accused based on a trite maxim – doubt invalidates Hudud punishment. It is also based on a trite principle derived from the tradition that it is better for a judge to err in acquitting ten guilty persons than to convict a single innocent person. This is the treatment of last resort.
Muslims as the trustees or vicegerents of this earth are required to live their lives in accordance with the Shari‘ah. They are also tasked to implement the law holistically, Hudud included, being a subset of the Shari’ah. For example, in the implementation of a Shari‘ah court order to cane, it is imperative that caning is carried out by a Muslim who is just. In enlisting the help of others, even a testimony by a non- Muslim expert is admissible in the Shari’ah court. It therefore follows that if required by the Shari‘ah, it is the duty of the Muslim doctor to carry out the implementation of Hudud as it seeks to ensure justice and upholding the wider interest of the public (Maslahah Mursalah) in preserving all the objectives of the Shari‘ah.
The oath of the Muslim physician is subservient to the higher ideals of the Shari‘ah to protect and preserve the greater maslahah (benefit) of the general public. In the specific case of amputation, it has been alleged that the doctor is contravening the oath of first, do no harm (primum non nocere). Justice and maslahah ammah (public interest) being the overarching principle of the Maqasid al-Shari‘ah, thus mandates the Muslim physician to perform the surgical procedure as instructed by the Shari’ah courts, in the most humane manner possible, a severe lesson for the offender and a strong deterrent to preserve the welfare of the community.
The crimes of murder, theft and adultery are severe violations not only against the rights of the victims but also against the “rights of God”. It deharmonises and destabilizes the social and moral fabric of the community. Thus the equally severe prescription of Hudud laws in the Quran.
As an inseparable niche of Islamic jurisprudence, its implementation should nevertheless be contextualized within the socio-political and economic realities of the society. Severing the hands of the petty thief whilst the rich escape scot free stealing millions from the country’s coffers would make a mockery of God’s laws. The Prophet (peace and blessings of Allah be upon him) set another unrivalled historical benchmark when he said, “Those before you were destroyed because they used to carry out the hadd punishment on the weak and did not carry it out on the noble. By the One who has my soul in His hand, if Fatima (the Prophet’s daughter) were to do that, I would cut off her hand." (Al-Bukhari, Book of Hudud, Chapter 89:6405).
In conclusion, Muslims (lay persons or professionals) do not question the relevance of Hudud laws in their lives. These laws are derived from the holy Quran and sacred traditions of the Prophet (peace and blessings of Allah be upon him). As to Muslim medical practitioners, practising the laws of Hudud is not against their medical oath. They are not doing any harm to an established criminal who has transgressed the boundaries of social justice and has to undergo a punishment that has been prescribed by Islamic law.

Dr Mohammed Fauzi Abdul Rani 
President of IKRAM Health