I am writing this in response to an article by Zainah Anwar in the Star where she presented her objections to the implementation of Hudud law. I understand that she sees herself as a 'modern, democratic and progressive' person and as such has great difficulty in understanding why there exists to this day people who are “stuck in medieval times”. I know that her views with respect to Hudud law and perhaps the whole of the Islamic legal system is shared by some Muslims and this is why I chose to give her article a response, all be it a brief one.
First I believe that a brief explaination on what Hudud law is about would be relevant here. Hudud law refers to those specific crimes and their related punishment which have been catergorically mentioned in the Quran. As such there are only a few crimes which fall under the purview of Hudud law. Given that these laws are directly derived from the Quran, to the Muslim, who believes that the Quran is the word of God, its implementation is a matter of faith.
The crimes which cannot be charged under Hudud fall under the purview of Ta'zir wherein the punishment and mode of proof is open to discussion and debate. It has also to be understood that the implementation of the Hudud laws are subject to very strict and stringent requirements. Due to the stringent punishments which are to be metted out, the requirements to necessitate the implementation of these laws are also equally stringent.
The case of adultery.
The question of 4 witnesses in the case of adultery and the subsequent Qazaf punishment should the accuser fail to bring forth the 4 witnesses is frequently scoffed at but it is an example of the strict and stringent requirements for conviction in view of the stringent punishment to be meted out. To meet the requirement of 4 reputable witnesses makes conviction almost impossible.
Perhaps some may then question, if it is nearly impossible to get a conviction in the case of adultery, why then the need for such a law? The answer is to maintain the status of adultery as a heinious crime in the eyes of the public. No one will then brag of having had illicit affairs in public. The social implications of adultery is obvious for all to see. Abandoned babies, divorces and the such is clearly on the increase. We speak out against the stringent punishment against adultery but who speaks out for the dead baby found in the trash bins?
The purpose of this requirement is also to ensure that such accusations are not made irresponsibly and rumours pertaining to a person's moral uprightness is seen as something unacceptable by the general public.
The case of rape.
In relation to the issue of rape, it has also to be explained, in the event some people still do not understand, rape and adultery are two different things. The law pertaining to adultery is not applicable to that of rape. An accusation of adultery is made by a third party wherein the act is done by other consenting individuals. An accusation of rape on the other hand, is made by the victim herself, not a third party and it is far from being consensual. Given the situation, the requirement for the 4 witnesses is not relevant to rape as it is to strengthen the accusation of the third party in the case of an accusation of adultery. In the case of rape, conventional items of proof can be used such as DNA and the such to secure a conviction.
It is to be noted that in the case of rape, many rapists get off scot free as they alledge it was consensual sex. This is more so the case in 'date rapes' or cases when the rapist is an acquaintence of the victim. In such cases, the victim has to proof that it was not consensual and in most cases the victim and her moral integrity is then put on trial. Under the Islamic system, consensual sex is not a defence for the rapist as in effect he would be admitting to adultery. The victim would be let off as she claims rape and her involvement in the sexual act was not consensual.
Ofcourse there are those who would argue that an unsuspecting male would then become the victim when a woman seduces him and she then cries rape. To that my response would be for the male to keep his pants on at all times. This in itself would be a deterrant to the occurrence of adultery as the male would always be wary as to whether such an invitation was a trap as he would have no escape route open to him should she intend to entrap him.
I do not deny that in some cases there are those who insist that rape and adultery are the same. It has to be noted that such claims have no Quranic justification and can be taken as a misinterpretation of Islamic law by individuals who do not understand the difference between the two. If this happens, I am sure the Sisters in Islam will be able to argue out the case for differentiating between the two cases.
Pregnancy out of wedlock.
Similar is the case for women who become pregnant out of wedlock. All that needs to be done is to say that she was raped or forced to have sex and that would suffice as her defence. Anyone saying otherwise should bring forth 4 witnesses as they are then the ones accusing her of having committed adultery.
A case in point is an incident in the time of Umar Al-Khattab when an unmarried woman was brought to him after having given birth to a child. Umar wanted to punish her but when asked by Ali, she explained what happened some 10 months before when she was forced to have sex in exchange for a drink of milk while she was dying of thirst. Given that explanation, Ali quickly retorted that she was a victim, forced to have sex and should not therefore be punished. She was then released.
It is to be understood that the spirit behind the implementation of the law is to find the accused innocent unless the evidence and proof is so overwhelming and all requirements have been met that it cannot be opined otherwise other than guilty. It is not to be implemented with a blood-thirsty and over zealious attitude as what some may wish to potray.
Thieves and the cutting off of their hands.
In the case of theft and the cutting off of the hand of the thief, it has to also be understood that in the first place, 2 righteous persons need to come forward as witnesses. They must have seen the thief stealing the item with their own eyes. At the same time, the item stolen must be above a certain value, kept in a reasonably safe location and the reasons for stealing must be other than out of necessity. Last but not least, the victim must insist on charging the thief or thieves in the court knowing full well the punishment which will be meted out in the case of a conviction. Should the victim choose to retract all charges, after having achieved an amicable out of court agreement, then again the conviction and thereby, the punishment averted.
It must be always borne in mind that the purpose of the law is to act as a serious deterrent to all 'would be prepertrators' and in so doing, reduce crime significantly. It is not the objective to maximise the number of those punished. Theft, especially those accompanied by violence leaves traumatised victims in its wake. Victims of snatch thieves, dragged over a few meters, suffer serious injuries. Some have died. Pregnant women have been known to suffer miscarriage and even innocent by-standers have been known to have become victims of this crime.
While conviction is difficult, due to the requirements set by the Hudud, its implementation will serve as an effective deterrent for fear that it may be implemented in that particular case being considered. Should through its implementation, the occurrence of crime is significantly reduced, then we must say that it has achieved its objective. If a single hand is in the end cut off, but through it a thousand incidences are averted, and with it also a thousand traumatised victims, would one not say that the law has been a success.
It has to be reiterated that in the event a case cannot be charged under Hudud, due to it not fulfilling the explicit requirements, it can then be charged under Ta'zir. In the case of theft, this includes situations where there were no witnesses to the crime but the stolen material was found in the posession of the accused, or there was only one witness instead of two and the such. In such cases the accused if found guilty will still be punished, but not under the laws of Hudud.
It can be concluded that much is not known about the Hudud laws and how it works within the bigger overall legal system, particularly by those who wish to appear as champions opposing it. What should happen is for the proponents to present their case in detail first, before it is opposed based on the points presented.
Secondly, while the crime and punishment for Hudud crimes are quite explicit, the procedures for its implementation can be discussed and so designed so as to ensure that they will not lead to an easy conviction.
Third and last, it is up to the Muslims to decide wether they wish for these laws to be implemented on them. If that is what they wish for, understanding it to be a requirement of their faith, who then is Zainah to refuse them their choice. After all, is it not said that one man's meat is another man's poison?
For those who like to give the impression that when HUDUD is implemented there will be so many people walking around without limbs and there will be not enough stones to throw are admitting that there are many thieves and adulterers among us who would commit these heinous crimes unashamedly in broad daylight for other people to witness. If our society has come to this point don't you think that immorality in our society has reached uncontrollable levels and the more so HUDUD is imperative. Laws are not only to punish but more so to be a deterrent and educate citizens on what is the norm and acceptable values in society.
As an MP, I have many complaints and requests for traffic lights to be put at certain junctions because of frequent accidents. Sometimes I feel like telling people that " hei why can't road users just stop at road junctions because it is after all your life that you are looking after". I know they would answer "YB, we are not talking about ourselves, there are some people who just couldn't care less and as a result of their carelessness or attitude, others get hurt or killed. If there is a traffic light there people will know when to stop!". Road users know if they decide to go against the traffic signals, they risk of being fined or imprisoned.
Allah SWT understands the nature of His creations better than we understand ourselves. It is our faith that Allah SWT knows best. As Assoc Prof Dr Mohd Asri puts it precisely, as Muslim you cannot go against Allah's decree ( the Quran is the word of GOD) but you can question the enactments and its implementation. Sisters, if you accept the word of Allah SWT, you would be doing a great service to Islam if you can sit down with the implementers to iron out what you may perceive would be unjust in the implementation of HUDUD.