PUNISHMENT OF HUDUD OFFENSES –UTILITY OF APPLYING IT IN MALAYSIA.

Md. Zubair Kasem Khan.Matric No.: G1110969.Master of Comparative Laws (MCL) International Islamic University Malaysia.

TABLE OF CONTENTS.1.0 Introduction:

1.1 Definition of the Offence of Hudud.

1.2 Classification of Hudud Offences According to Islam.

1.3 General Explanation of Hudud offences.

2.0 Purpose of declaring certain prohibited activities as Grievous Offence in Islam:

2.1 Reasons Of Declaring Seven Activities As Grievous Offence.

2.2 The Aim/Goals Of Executing Such Punishments In Islam.

3.0 Laws or Enactments for Punishment of Hudud in Malaysia( Kelamtan & Terengganu): 3.1 Kelantan Syariah Criminal Code (Ii) Enactment 1999 (Hudud Law).

3.2 Syariah Criminal Offences (Hudud and Qisas) Terengganu, 2002.

3.3 The Clogs/Encumbrances In Carrying Out Hudud Law In Malaysia.

4.0 Recommendation and Conclusion :

1.1 DEFINITION OF THE OFFENCE OF HUDUD.

Hudud(حدود ) is an Arabic word derive from the singular word Hadd (حد) which means boundary, limit, barrier, obstacle or restriction. It also literally use to mean in Islamic Literature for the bounds of acceptable behavior and the punishments for serious crimes.

According to the Prof. Mohammad Hashim Kamali-

“ Hadd(Hadd-Allah) has been reserved to signify a fixed and unchangeable punishment that is laid down in Quran and Sunnah of the Prophet Muhammad(p.b.u.h).”

Hadd-Allah is a familiar expression which occurs 14 times in the Holy-Quran signifying “limits” whether moral or legal, of acceptable behavior from that which is unacceptable, in the sense for example of separating the HALAL and HARAM from one another.

1.2 CLASSIFICATION OF HUDUD OFFENCES ACCORDING TO ISLAM.

There are 7 classification of hudud:-

1) Theft (السرقة)

2) Robbery ( الحرابة )

3) Illicit Sexual Intercourse (الزنى)

4) False Accusation of Zina (القذف)

5) Drinking Intoxicating Liquor ( الخمر ( شرب

6) Apostasy (الردة)

7) Rebellion ( البغاة )

1.3 THEFT (السرقة). The word “Theft” means to take away the property of another

person secretly/surreptitiously without the knowledge and consent of that person. The most important thing for committing Theft is to take away the property of someone surreptitiously(Allamah al-Kasani).

In Sura-Ma’idah, Allah(Sub.Ta’ala) Says-

…[As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah. And Allah is Exalted in Might and Wise…(5:38)

CONTINUING…….

To accuse a person to be liable for stealing, one must be- Adult of sound understanding Intention must be unlawful to take away the movable

property The property stolen must by under the full

possession/custody of the thief. The prescribe value of the stolen property must by

prescribed value(10 Dirhams). The punishment of Theft liable to Hadd is amputation of the

right hand of the convict from the joint of the wrist(most of the Scholars).

The punishment of Theft liable to Hadd is amputation of the tips of the right hand of the convict and not his palm(Shi’ah Imamiyyah).

1.3 ROBBERY ( الحرابة ) Literally means to quarrel, to fight with the intention to take away

property from a person openly by terrorising either threatening to use of force or using force.

Harabah can be committed either by individual or a group of people in the form of Robbery, Bloodshed, High Treason, Dacoity etc.

Allah says in the holy Quran, Sura Ma’idah as-

“…Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment....” [5:33]

CONTINUING…….

The Difference between Theft and Harabah is- Theft means to take away others property surreptitiously whereas Harabah means taking away others property deliberately by using force publicly.

According to the Sura Ma’idah (Ayat:33-334), the following four kinds of punishment can be sanctioned for Harabah which are- Death Penalty; Crucifixion Penalty; Amputation of Hand and Food from opposite sides & Banishment Penalty.

1.3 ILLICIT SEXUAL INTERCOURSE ( الزنى )

Legally the term “Zina” means “Having willfully sexual intercourse between a man and a woman, without having validly married to each other. (Abdurrahman I Doi, 1992)

Prof. Dr. Anwarullah defines “Zina” as willful sexual intercourse between a man and a woman who are not, and do not suspect to be, validly married to each other.

Zina has been prohibited in Islam. Holy-Quran says,

“…And do not come near to adultery: For it is a shameful (deed) and an evil, opening the road (to other evils).” (17:32)

Besides, Islam is very strict in prohibiting Zina because it leads to confusion of lineage, child abuse, the breaking-up families, bitterness in relationship, the spread of venereal disease and a general laxity in morals.

CONTINUING…….

Allah says in Sura Al- Nur(Ayat:2) that-

“…The woman and the man guilty of adultery or fornication, flog each of them with hundred stripes. Let not pity withhold you in their case, in a punishment prescribed by God, if you believe in God and the Last Day: And let a party of the believers witness their punishment…”. [24:2]

Thus the hadd punishment of zina for an unmarried person is hundred stripes according to Imam Abu Hanifah.

According to Imam Malik, Imam Shafei and Imam Ahmad the punishment of zina for an unmarried person is whipping hundred stripes and banishment for one year.

CONTINUE…

Likewise, the Punishment of “Zina” for a married person is concerned, the Holy prophet has prescribed it as “Rajm” i.e. stoning to death. The Holy Propher himself has executed the punishment of “Rajm” to three married Muslims one man and two women.

1.3 FALSE ACCUSATION OF ZINA (القذف)

Literally means to accuse, to defame and in terms it means to accuse of Zina an adult and sane Muslim who has never committed Zina or to refuse the legitimacy of a child.

In other words, when a person accuses another person of Zina and couldn’t produce 4 witnesses in support of his allegation, he is considered to have committed the offence of Qazf liable to Hadd.

The Qur’an states:

“….And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient….” [Surah An-Nur, 24:4,5]

CONTINUE....

The punishment of a person who commits Qazf liable to Hadd is eighty(80) stripes and forty(40) for the slaves.

The consequence of Qadf is that, the evidence of the accuse will not be accepted after being punished for Qadf according to Imam Abu Hanifah.

However, Imam Malik, Imam Shafii and Imam Ahmad contradict that, his evidence will be accepted if he later on repents and mends his conduct.

1.3 DRINKING INTOXICATING LIQUOR ( الخمر ( شرب The Arabic word “Khamr” literally means- “something that veiled or

covered or concealed” a thing. Drinking wine is called Khamr because it veils the intellect and obscures the moral sensibilities of a man.

Regarding Khamr, Allah Subhana Ta’ala says in the Holy Quran –

“…O you who believe! Come not to prayer when ya are drunk until you understand what you say…” [4:43].

In Sura Bakara, Versus:219, Allah Subhana Ta’ala says that-

“…They ask thee concerning wine and gambling. Say: "In them is great sin, and some profit, for men; but the sin is greater than the profit….” [2:219].

CONTINUE....

Drinking of any intoxicating liquor is prohibited whether more or less or whether fermented from grapes and dates or from any other thing and is punishable whether Hadd or Ta’zir. It is, however, necessary for the Hadd punishment that the accused has taken wine or other introxicating liquor by mouth.

In Syariah criminal law, the drinker who has been proven for an offence of drinking wine or intoxicating liquor, whether he has become intoxicated or not will be punished with whipping of not more than 80 stripes and not less than 40 stripes.

1.3 APOSTASY (الردة) The Arabic equivalent for apostasy is Irtidad or Riddah. So,

Al-Riddah means rejection of the religion of Islam and acceptance of other religion either through word of mouth or through an action.

Example of Apostasy is- does not believe the existence of Allah or Muhammad(p.b.u.h), rejection of obligatory of Islam like prayer, zakat or bowing down to an idol or sun or moon. Disbelieving of next life, not performing praying and fast in Ramadan purposely is also considered as signs of Apostasy.

CONTINUE....

The Hadd punishment of Apostate is death after being given him reasonable opportunity for repentance. The Holy Prophet saya-

“ Kill The Person (Muslim) Who Abandonds His Religion” (Ibn Qudamah Vol:10, Page:86)

Imam MalikImam Shafi’eImam Ahmad

Death punishment is common for all apostates whether male or female

Imam Hanafi

A woman apostate shall not be punished with death but shall be imprisoned till she repents or dies

He bases his opinion on the hadith wherein the Prophet has ordered not to kill women of Non Muslims during battle with them

1.3 REBELLION ( البغاة )

Rebellion Literally means speech or behavior directed against the peace of a state and in terms of Islamic law it means to turn against a righteous Muslim ruler and disturb the peace of the community.

According to Ibn Abidin(Radd al-Muhtar V:III, Pg:426) Rebellion is a Political Offence directed against the government or the ruler and not against the Social Order.

In Sura An-Nisa, Versus:59, Allah Sub’hana Ta’ala Says-

“…O you who have believed, obey Allah and obey the Messenger and those in authority among you….” [4:59] .

CONTINUE....

An important condition of Rebellion is that it takes place in a revolution or in a state of civil war brought about for the achievement of the goal. If no Revolution or State of Civil War exists when the offence is committed, it does not amount to rebellion, but will be treated as Habitual Offence.

According to some jurists, Hadd punishment of Rebellion is Death

during the Rebellion when the rebels start using force.

2.1 REASONS OF DECLARING SEVEN ACTIVITIES AS GRIEVOUS OFFENCE. As Allah Sub’hana Ta’ala states in Suratul An-Nisa, Versus:123 that-

“….Whoever works evil, will be required accordingly…”(123).

therefore, all the Islamic Scholars unanimously agree that the enforcement of the Islamic criminal law is the foremost duty of an Islamic State so as to protect the society from the evil effects of the crimes and reform the offenders and evil-doers.

In other words, being an universal law, the Islamic Criminal Law resolves about the following five fundamental points- Protection of Religion, Protection of Life, Protection of the Sanctity of Family, Protection of Property & Protection of Sense.

2.2 THE AIM/GOALS OF EXECUTING HUDUD PUNISHMENTS IN ISLAM There are 3 aims/goals of punishment:

DETERRENCE

• Specific deterrence: to prevent those who are punished from committing additional crimes in the future.

• General deterrence: to deter members of society from committing similar crimes.

REHABILITATION

• To reform the offender and thus to reduce his propensity to commit crimes in the future.

RETRIBUTION

• The Holy Qur’an refers to Retribution as punishment both in this world and in the Hereafter.

• Punishing the wrongdoer in the same manner as he had committed the wrongful act.

3.1 KELANTAN SYARIAH CRIMINAL CODE (II) ENACTMENT 1999 (HUDUD LAW). This enactment has 5 parts where the first part highlights the

provisions on the six hudud offences. A brief summary of these are as follows-

PART 1 of this enactment enlisted the 6 Hudud offences such as theft, robbery, zina, qadhaf, drinking liquor and apostasy.

PART 2 deals with Qisas. PART 3 provides about evidence i,.e number of witness in proving

hudud offences and its qualification. PART 4 explains about the implementation of hudud punishment.

CONTINUE....

THEFT OFFENCESECTION 5 defines theft offence

SECTION 6 provides theft punishment: a) For the first offense cut off his

right hand;b) for a second offense cutt off his left legc) for third and subsequent offense with imprisonment for a term which the Court thinks fit to make the offender repented

SECTION 7 : circumstances where hudud law for theft offence cannot be implemented such as where the stolen property has no value, the offender is not mukallaf and etc.

ZINASECTION 10 defines zina as sexual intercourse between man and women without legally married and not under “wati’ syubhah”

section 11(1) : if the offender is mohsan, the punishment is stoning the offender with stones of medium size to death

SECTION 11(2) : if the offender is ghairu mohsan will lashed with 100 lashes and in addition 1 year imprisonment.

CONTINUE....

Presumption of Pregnancy as Proof of Zina:

SECTION 46 (2) provides in case of Zina, pregnancy or delivery of a baby by an unmarried woman shall constitute evidence on her guilty of Zina and therefore the hudud punishment shall be passed on her unless she can prove to the contrary.

The presumption of Zina under this sec gives the burden@ shifted the burden of proof on the pregnant women to prove that she is not committed Zina because as a woman she might become pregnant through rape or from intercourse while she is unconscious.

This Provision, however, has been criticized by different groups by saying that it is injustice, cruel and barbaric.

CONTINUE....

Rebutting of their opinions:-

They are wrong in interpreting this provision as because to proof a Zina, The prosecutor must produce 4 male witnesses who are the eye witness when zina was committed

Anwarullah wrote that Imām Abū H‑anīfah, Imām Shāfi`ī and Imām Ah‑mad opine that hadd of zinā cannot be implemented on circumstantial evidence even if it reaches to the degree of certainty like pregnancy of an unmarried woman.

The jurists, however, concur that any other circumstantial evidence in zinā such as existence of semen on the body or clothes of an accused man or woman and medical report shall be sufficient proof for ta`zīr only.

IN REALITY….

This Kelantan Syariah Criminal Code (Ii) Enactment 1999 (Hudud Law) was passed in November 1993 by the State Legislative Assembly of Kelantan.

However the Bill has become controversial and pending for approval by the Federal Government though this enactment has been drafted and passed about 20 years ago.

This was followed by Terengganu State Legislative Assembly which passed the bill known as the Syariah Criminal Offences (Hudud and Qisas) Enactment, Terengganu, 2002.

This enactment is a continuing effort from PAS in their struggle to establish Malaysia as an Islamic state.

Likewise Kelantan, Terengganu also has the same enactment on Hudud Law.

IMPEDIMENTS IN IMPLEMENTING HUDUD LAW IN KELANTAN AND TERENGGANU ?

Section 2 of Syariah Courts (Criminal Jurisdiction) Act

1965 limits the criminal jurisdiction of Syariah Courts

The Syariah Courts shall NOT have jurisdiction more than “3 5

6” Rule i.e. the offence punishable must not exceed:-

3 years imprisonme

nt, RM5000

fines, 6 strokes of whipping.

The Syariah Courts only have jurisdiction over persons professing the religion of

Islam and in respect of matters enumerated in List II of the State List of the Ninth Schedule to the Federal Constitution.

Personal And Family Law, The Islamic Law of

Succession, Betrothal,

Marriage, Divorce, Wakafs

CONTINUE....

Article 75 of Federal Constitution bar enacting the Kelantan Syariah Criminal Code (Ii) Enactment 1999 (Hudud Law), the Syariah Criminal Offences (Hudud and Qisas) Enactment, Terengganu, 2002 and other Shariah Enactments by providing that-

If any State law is inconsistent with a Federal law, the Federal law shall prevail and the State law shall, to the extent of the inconsistency be void.

Hudud law in Kelantan and Terengganu have become much too politicized and controversial and there is a lack of consensus between the Federal and State governments as to whether they will secure justice under the present circumstances.

CONCLUSION

The Gap between Ideal and Reality and the Theory and Practice of Sharia has grown so wide as to the modern world in the form of Barbaric, Brutality that they refuse and sometimes afraid to accept Sharia principles.

Ignorance of the Sharia Principles.

No such exemplifying country that successfully practiced Islamic law .