What is “Hudud Law”?
actual term is the Islamic Penal Code System or in Arabic
called Jinayah. Hudud fall under the Jinayah or in other
words it is a part of Jinayah. Jinayah is consist of several
parts; Hudud (the mandatory punishment), Qisas (the reciprocate
punishment) and Takzir (any other was not covered by Hudud
and Qisas). The offenses listed under hudud are:
Theft (Sariqah) 2) Robbery (Hirabah) 3) Fornication (Zina)
4)Adultery (Zina Ghiru Muhsan) 5) Apostacy (Murtad) 6)
False accusation of acts of indecency on a man or woman
(Qazaf) 7) Rebellion against a legitimate government without
any strong justification (Bughah). In simpler terms and
modern terms, the Hudud is list of offenses that will
invoke mandatory punishment.
Why is Hudud law so archaic and medieval in nature? Isn't
stoning a person to death considered as medieval?
Islamic Penal Code and Hudud is not archaic or medieval.
On the other hand, one is correct to say that it is OLD.
The punishment in hudud is in fact as old as the crime
that it is prescribed to.
has to admit that crimes like fornication, adultery, homosexuality,
theft, robbery and the rest are not crimes of MODERN and
CONTEMPORARY origins as opposed to crimes like running
a red light or speeding.
The implementation of Hudud laws is not suitable for this
day and age
Q3 is asked in this day and age due to the rehabilitation
practice for crime offenders. In other words the prevalent
and current doctrine for crime-control practice throughout
the whole world is REHABILITATIVE in nature.
Islamic Penal Code uses a completely different philosophy
in which it emphasizes on PREVENTION rather then REHABILITATION.
measure of success in Islamic Crime control approach depends
on the reduction of crime in a society or community. In
other words, the lower the crime rate the more successful
we are at controlling crime.
current practice of rehabilitation relies heavily on how
many crime offenders are being brought back to the right
path while they are put in jail at the expense of the
When hudud was introduced to the general public, naturally
it invites a lot of surprises from the public considering
that we have been exposed to one doctrine of crime control
all this while.
Also, justice transcends the boundary of time and therefore
is enshrined so in hudud. Who is to say what fits and
what does not fit in these day and age.
There is sufficient civil and criminal legislation in
the current Malaysian laws that covers the crimes mentioned
in the Terengganu Hudud Laws
Unfortunately, acts like fornication, adultery, intoxication,
accusation of fornication/adultery are not acts deemed
as a crime under the current Malaysian Penal Code. Therefore,
there is no sufficient provisions according to Islam,
governing the law in the Malaysian Penal Code
Q5:The Pakistan experience shows that the law is cruel
and unjust to women especially. The case of Zafran Bibi
is an example of injustice of the hudud law in Pakistan.
The case of Zafran Bibi was quoted in the statement. By
referring to a report by Guardian
, here are a few interesting details to be highlighted:
Zafran Bibi was sentenced to stoning for the fact that
she had named at first Akmal Khan, a villager involved
in a long-running dispute with her family, her neighbor,
as her rapist. She then changed her testimony by naming
her brother in-law, Jamal, 15 years old, as the rapist.
The fact that the alleged rapist was a 15 year old boy
The fact that her claim as being raped cannot be taken
by the court as she has perjure herself and thus destroy
every bit of credibility left in her
The fact that she tried to incriminate an innocent man
The fact that her lawyers were stunned shows that such
a conviction was not common.
The fact that there exist no medical evidence proving
her claim of rape.
The claim that Zafran Bibi was convicted due to her accusation
of rape which constitutes a confession of the crime of
zina. If one were to examine the full details of the case
one can deduce that the conviction was due to the fact
The pregnancy was actually the main proof of conviction
being that Zafran was pregnant while her husband was in
Her accusation of rape was taken into account due to the
fact that she CHANGED her testimony and thus perjures
herself in the process. If there was no perjury then her
testimony might hold some weight in the case. Her accusation
of rape was then deemed as a form of confession.
to the prosecutor:
made herself guilty in that statement when she clearly
admits she had committed zina [adultery] with her brother-in-law,'
said Kurshid Anwar, a prosecutor in the case. 'There was
no mark of violence on her body. It was the right decision
as long as the law exists.' “
Zafran tried to incriminate an innocent man. This actually
is a proof that necessitates Section 9 of the Terengganu
Hudud Bill that protects men from being wrongfully accused.
The case of Zafran also points out that the so call 4
witnesses was not taken into consideration when it comes
to rape under hudud. This is because in the judgement
written by Judge Anwar Ali Khan, no reference was made
to the fact that there exist no 4 witnesses in this case.
Furthermore, the case is expected to be overturned by
the Federal Syariah Court
There are other cases in Pakistan of similar type was
thrown out by the courts due to strong suspicions that
sexual acts occurred in a consenting manner. Yet it was
never referred to skeptics of the Hudud law.
The Terengganu Syariah bill has dealt with the issue of
rape accordingly which has led to the Amendments to Section
9 of the draft. So the Pakistan experience cannot be equated
The fact that the skeptics needed to quote the Zafran
Bibi’s case out of context shows that there exists little
or no evidence proving the injustice of hudud laws in
Pakistan. This is in spite of repeated unsubstantiated
claims made by bodies such as Human Rights Commission
Implementation of Hudud does not guarantee free from crime
simple comparison between Saudi Arabia and the State Of
New York will show that the State of New York has recorded
and will always continue to record a much higher rate
of crime compared to Saudi Arabia at any given time for
any given period.
a statement released by the US Justice Department and
reported by Reuters on 26 August 2002 says that:
"The number of Americans in jail or under supervision
by authorities as a result of crimes grew by 2.3 percent
by year-end 2001 to almost 6.6 million Americans, or one
in every 32 adults, the government said on Sunday".
Hudud punishment is harsh and inhumane which contradicts
The Principles of Justice in any Jurisprudence text can
be roughly summarized in 5 pillars:
A law recognized by the people
Open hearing and rights to council
Rights to Appeal
Hudud not only satisfies these 5 pillars but also exceeds
them by any standard. Therefore how can Hudud be contradictory
to Human Rights?
While it's true that the punishment may seem a bit harsher
then that of Penal Code, but the Standard of Proof in
Hudud is much higher then the one used in Penal Code.
In other words, to get a conviction under Hudud is not
a simple as the proof needed to convict someone is of
a higher standard then that of the Malaysian Penal Code.
In Hudud, convictions is done BEYOND ANY SHADOW OF DOUBT
while in the Penal code convictions can be achieved if
the case if only proven Beyond Any Reasonable Doubt.
From the statement above, it's clear that with the rising
of harshness of Hudud punishment, the Standard of Evidence
that is needed to convict someone under hudud also increases.
instance, in the Penal Code, a liar's testimony in court
can be accepted by the judge as evidence while in hudud
cases a liars testimony is totally rejected and will not
be accepted in any cases. The comparison is as follow:
the cases Khoon Chye Hin vs Public Prosecutor and Gulwant
Singh v Abdul Khalid, the judge observed that even though
the witness had been proven to be a liar on one of two
points, it was wrong to reject whole of his evidence although
it is the duty of the judge to treat the witness with
caution. However, it would not be enough to reject the
A Practical Approach to Evidence, p225)
late Justice Hamoodur Rahman former Chief Justice of Pakistan
who was also the Chairman of the Council of Islamic Ideology,
A person who gives false testimony should be declared
to be incompetent to give evidence in any other case and
a register should be maintained of such witnesses”
“Some Aspect Of Islamic Law Of Evidence”, in Essays on
Q8: Case Studies:
What if a prostitute was arrested for fornication or adultery
under hudud. The reason for her action is that she relies
on prostitution to provide for her and her family as she
is living in poverty?
She will not get the hudud punishment and instead the
government agencies that is supposed to support her will
What if a woman who converted to Islam due to marriage
and after that gets a divorce while during the marriage
the husband neglected her education on Islam and left
her ignorant and uninformed enough about Islam to embraced
it for the rest of her life. Should she wants to remarry
and decides to leave her religion, will she be subjected
to the death penalty under hudud?
NO, considering that her conversion to Islam was not entirely
by her free will out of a well informed decision. There
are credible doubts about he conversion in Islam whether
it was due to her deep understanding or was it due to
mere feelings without any self conviction for converting.
In fact, her husband can be punish by the court under
If somebody is caught stealing for food or out of desperation
or dire need for money. Will his hand be chopped off?
NO, because the chopping of hands punishment does not
apply to those who steal out of hunger or dire needs,
a wife stealing from her husband for sustenance, stealing
of public property, stealing of articles that is small
in quantity and many more.
When a woman is accused under hudud for fornication or
adultery and she is pregnant out of wed lock, is her claim
of rape enough to justify a doubt in her case
YES, a mere claim of rape is sufficient to constitute
a doubt in a case provided that the women has never been
proven as a liar and has an unquestionable background.
Does hudud law destroys personal freedom in which there
will be a massive movement towards enforcing the law even
within the four walls of your home?
is actually the opposite. Spying on individuals to find
faults that can lead to hudud convictions is PROHIBITED
in Islam. Should there be an enforcement unit on hudud,
they are not allowed to spy or send undercover agents
to extract evidence that can be used against an individual
or a group.
practice is shown by Prophet Muhammad himself when he
deliberately ignored confessions of a hudud offender the
first time he hears the confession and try his best not
to allow the offender to confess. To spy on an individual
is exactly the opposite of what the Prophet had done.
Women are prohibited to become witnesses in Hudud and
Qisas cases except in certain instances. This constitutes
exclusion of women from the process of justice thus denoting
them as being unreliable, untrustworthy, and incapable
of being witnesses
In fact, a woman IS allowed to testify Hudud cases. The
difference is that their testimony will not be
to get a hudud conviction. If that is the case, then the
testimony will be sufficient for a At Takzir conviction.
I’ve heard the response made by MB of Terengganu on this
issue and he clearly state that the rule is to lift the
burden of being a witness to women as Islam views the
act of witnessing as responsibility and not a form of
privilege. A witness will be reponsible for one's testimony
until the Day of Judgment.
3) To quote from the Pakistan’s experience, Justice Tanzilur
neither any petition has so far been made before the court
nor any objection has been taken in any appeal that the
exclusion of evidence of women and that of non-muslims
under the Hudud Ordinance for the offense liable to hadd
punishment was AGAINST THE INJUNCTIONS OF ISLAM. The Federal
Syariah court as well did not find anything wrong with
these provisions” (Rahman, “Some aspects of the Islamic
Law Of Evidence”, Lahore, Islamic Publication (PVT) Limited,
1988, pg 235)
Women in countries implementing Hudud laws are victimized
through Qazaf provisions combined with the acceptance
of pregnancy-out-of-wed-lock evidence. This will specifically
victimized rape victims and let the rapists go free.
As the case of Zafran Bibi, often quoted by Hudud skeptics,
shows that the need for 4 witnesses is unnecessary for
To date, no rape victims have ever been subjected to Hudud
punishment. The best that Hudud skeptics can come up with
are cases which in the end ended up with total dismissal
of the cases and the accused are released from custody.
All of the so called "evidences" comes from
basically two states: Nigeria and Pakistan. All of which
have a relatively little experience in the implementation
of Jinayah. Countries with a long experience of implementation
are not mentioned in their list i.e. Saudi Arabia. Isn’t
In spite of this, no credible cases of mistreatment of
women in both Nigeria and Pakistan can be quoted to date.
All there is just cases like misquoted cases like Zafran
Bibi mentioned above.
In the context of Malaysian Democracy, if the Malaysian
community decides not to accept the law, will the Terengganu
government push forward it’s implementation?
The implementation Hudud on muslims was contained in PAS’es
Terengganu State manifesto before the 1999 elections.
When PAS was voted into power in 1999 implementing it
is merely a fulfillment of it's election promises.
Non-Muslims cannot be witnesses in the criminal cases
listed under Hudud seems grossly unfair. The underlying
assumption that non-Muslims are somehow ‘lower’ than Muslims
implies that non-Muslims can be treated as second-class
Non Muslims are allowed to testify in Hudud cases. THe
only difference is that their testimony will not be sufficient
for a hudud conviction and will only lead to a Takzir
However, in cases where there is an absence of any muslim
witnesses, the testimony of a non muslim will be accpeted
for a hudud conviction with two conditions:
He/She has never been proven to be a liar
He/She is a believer of a religion and practices his/her
The religion of a witness is also not an alien concept
to the English law as well. In the 17th century, the religion
of a witness is placed with great emphasis and excluded
the evidence of non-Christians and atheists because they
did not believe in God, and they were therefore regarded
as incompetent to be witness. (M.N. Howard, Phipson On
Evidence, 14th Ed. Phara, 9-06. See also, Cross, Cross
on Evidence, 7th ed., p2002)
In the case of Bowmen v Secular Society Limited (1917)
Appeal case 406, Lord
ours is and always has been a Christian state. The English
family is built on
ideas, and if the national religion is not Christian there
is none. English
may be called a Christian law, but we apply many of its
rules and most of it’s
with equally good government, in heathen communities and
even in courts of conscience they are material and not
Malik Bappa Muhammad, Supremacy of Islamic Law, p.68.)
Furthermore, Justice Jeremy Bentham has said that it is
good enough if the witness
in some kind of divine punishment, although it need not
be as bad as hell-fire
Spencer & RH, Flin, The Evidence of Children:The Law
and the Psychology,
Press, p 49).
The English Law of Evidence on this particular matter
clearly provides that a
should take an oath in the manner of appropriate to his
or her religious faith.
on Evidence, p.158)
It is in fact that the Islamic Penal Code is not alone
in using the religion quality for a witness as it has
been used before and even now in the western world.
In addition, the issue of non muslims becoming second
class is non existence considering that it is the choice
of the Non-Muslims themselves not to be governed by the
law and they disqualify their rights to become witnesses
since they chose to disqualify themselves.
Does the hudud law covers non muslims as well?
and it is stated clearly in the recently passed Terengganu
Syariah Enactment II
The fact that there was ambivalence showed by the Terengganu
PAS leaders towards the applicability of hudud on non-Muslims
is also disturbing. Assurances that non-Muslims would
not be judged under hudud were mixed together with statements
saying that non-Muslims would inevitably want to be included
in a hudud justice system because of its inherent fairness.
What was actually said was that non muslims will eventually
covered under the “Hudud” law by their own choice upon
seeing the effectiveness and the goodness of the law.
The Terengganu State government is very clear on this
and adamant too.
Muslim apostates will be killed also sits very uneasily
with the Constitutional Provisions that there is freedom
of religion in Malaysia.
Death penalty to apostates is akin to punishment of treason
for most countries in the world. The default punishment
for treason even in democracies like USA and Britain is
always death. Apostasy is treason against GOD and it is
of a higher level of treason then that of treason against
your country. The logic is there.
2) The death penalty to apostates will actually not be
contradictory to the Constitution of Malaysia because
in the same Constitution there contain the provision of
freedom of religion. The death penalty is actually part
of a religious law which it’s practices is protected by
the Constitution. In addition, the Constitution too stipulates
that Islam is the official religion.
What is the weight of circumstantial evidence and expert
opinion in hudud law?
Circumstantial evidence is sufficient to provide doubt
in favor of the accused in a hudud case, such that a person
under trial for a hudud case can be freed on doubts provided
by circumstantial evidence. For instance, a a fingerprint
search at a crime scene can prove that an accused was
never at the crime scene at all and can therefore be freed
on hudud charges
In Islamic evidence law, circumstantial evidence (i.e.
DNA testing, carbon dating, fingerprint testing, blood
analysis, other chemical tests etc) and expert opinion
ARE taken into consideration only for cases involving
TAKZEER should there be no other evidence available.
Circumstantial evidence will NOT be SUFFICIENT to get
a CONVICTION in hudud cases. It does, however, serve as
a corroborative to the conclusive evidence needed to prove
a hudud case.
The Arabic or technical term for Circumstantial evidence
in Islamic Evidence law is Al Qarinah.
Q18: Is Hudud gender bias?.
is NOT gender bias in the sense that none of the offenses
and punishment under hudud are dedicated for a certain
gender. All of it's punishment are meant for ALL GENDER.