Hudud FAQ

Q1: What is “Hudud Law”?

The 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:

1) 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.

Q2: Why is Hudud law so archaic and medieval in nature? Isn't stoning a person to death considered as medieval?

The 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.

One 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.

Q3: The implementation of Hudud laws is not suitable for this day and age

1) 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.

The Islamic Penal Code uses a completely different philosophy in which it emphasizes on PREVENTION rather then REHABILITATION.

The 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.

The 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 public.

2) 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.

3) 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.

Q4: There is sufficient civil and criminal legislation in the current Malaysian laws that covers the crimes mentioned in the Terengganu Hudud Laws

1) 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.

1) The case of Zafran Bibi was quoted in the statement. By referring to a report by Guardian

at http://www.observer.co.uk/worldview/story/0,11581,714166,00.html , here are a few interesting details to be highlighted:

Ÿ 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.

Ÿ The fact that the alleged rapist was a 15 year old boy

Ÿ 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

Ÿ The fact that she tried to incriminate an innocent man

Ÿ The fact that her lawyers were stunned shows that such a conviction was not common.

Ÿ The fact that there exist no medical evidence proving her claim of rape.

2) 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 that :

Ÿ The pregnancy was actually the main proof of conviction being that Zafran was pregnant while her husband was in jail.

Ÿ 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.

According to the prosecutor:

“'She 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.' “

A) 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.

3) 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

4) 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.

5) 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 with Terengganu.

6) 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 of Pakistan.

Q6: Implementation of Hudud does not guarantee free from crime society

A 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.

In 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".

Q7: Hudud punishment is harsh and inhumane which contradicts human rights

1) The Principles of Justice in any Jurisprudence text can be roughly summarized in 5 pillars:

A) A law recognized by the people

B) Public Prosecution

C) Open hearing and rights to council

D) Independence Judiciary

E) Rights to Appeal

The Hudud not only satisfies these 5 pillars but also exceeds them by any standard. Therefore how can Hudud be contradictory to Human Rights?

2) 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.

3) 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.

4) 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.

Comparison

For 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:

Penal Code

In 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 witness altogether

(Nathan, A Practical Approach to Evidence, p225)

Islamic Penal Code

The late Justice Hamoodur Rahman former Chief Justice of Pakistan who was also the Chairman of the Council of Islamic Ideology, states that:

“ 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”

(Rahman, “Some Aspect Of Islamic Law Of Evidence”, in Essays on Islam, p229)

Q8: Case Studies:

1) 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?

Answer: She will not get the hudud punishment and instead the government agencies that is supposed to support her will held responsible.

2) 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?

Answer: 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 takzeer.

3) If somebody is caught stealing for food or out of desperation or dire need for money. Will his hand be chopped off?

Answer: 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.

4) 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

Answer: 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.

Q9: 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?

It 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.

The 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.

Q10: 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

1) In fact, a woman IS allowed to testify Hudud cases. The difference is that their testimony will not be

sufficient to get a hudud conviction. If that is the case, then the testimony will be sufficient for a At Takzir conviction.

2) 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 Rahman says:

“Certainly, 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)

Q11: 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.

1) As the case of Zafran Bibi, often quoted by Hudud skeptics, shows that the need for 4 witnesses is unnecessary for rape cases.

2) 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.

3) 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 this strange

4) 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.

Q12: 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?

1) 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.

Q13: 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 citizens.

1) 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 conviction

2) 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:

A) He/She has never been proven to be a liar

B) He/She is a believer of a religion and practices his/her religion.

3) 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)

A- In the case of Bowmen v Secular Society Limited (1917) Appeal case 406, Lord

Summer said:

“ ours is and always has been a Christian state. The English family is built on

Christian ideas, and if the national religion is not Christian there is none. English

law may be called a Christian law, but we apply many of its rules and most of it’s

principles with equally good government, in heathen communities and it’s

sections, even in courts of conscience they are material and not spiritual”

(Abdul Malik Bappa Muhammad, Supremacy of Islamic Law, p.68.)

B- Furthermore, Justice Jeremy Bentham has said that it is good enough if the witness

believes in some kind of divine punishment, although it need not be as bad as hell-fire

(J.R., Spencer & RH, Flin, The Evidence of Children:The Law and the Psychology,

London:Blackstone Press, p 49).

C- The English Law of Evidence on this particular matter clearly provides that a

witness should take an oath in the manner of appropriate to his or her religious faith.

(Phipson on Evidence, p.158)

4) 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.

5) 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.

Q14: Does the hudud law covers non muslims as well?

No and it is stated clearly in the recently passed Terengganu Syariah Enactment II

Q15: 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.

1) 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.

2) The Terengganu State government is very clear on this and adamant too.

Q16: Muslim apostates will be killed also sits very uneasily with the Constitutional Provisions that there is freedom of religion in Malaysia.

1) 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.

Q17: What is the weight of circumstantial evidence and expert opinion in hudud law?

1) 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

2) 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.

3) 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.

4) The Arabic or technical term for Circumstantial evidence in Islamic Evidence law is Al Qarinah.

Q18: Is Hudud gender bias?.

Hudud 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.