In
this work, we are motivated to clear misconceptions on Hudud laws, which are being
spread by poison-pen papers like The Star, Straits Times and Malay Mail, the
local English newspapers who are well known for their cheap scare-mongering attacks
Islamic punishment laws, although they always claim that the views of the
author, in this case Sister In Islam (The Star) and Ilyana Nadira (Malay Mail) does
not reflect the position of both newspapers on the issue of Hudud. If such is
the case, then these two papers should also allow sincere scholars to rebuke
the writings of Sister In Islam (SIS) and Ilyana Nadira and publish them in
their respective columns, on the issue of Hudud, since muslim scholars on
Islamic laws are more qualified to explain the subject, not people like SIS and
Ilyana.
We
will only focus on SIS misconceptions on Hudud, since Ilyana’s article in the
Malay Mail is a copy and paste article from SIS. Their claims on Hudud laws is
questionable, and further complicated on their lack of scholarship and
qualifications on Islamic laws, where they do not provide any evidences of
their claims on Hudud, from the sources of Islamic laws which is the Quran and
Hadith of the Prophet. We also regard the actions of these three newspapers akin
to a Malay proverb “Lontar batu, sembunyikan tangan” or “throw a stone, and
hide your hand”, as they do not give a chance to sincere scholars to explain
and clear the misunderstandings on Hudud punishment in their own news columns.
It is becoming a fact that all three newspapers such as The Star, New Straits
Times and Malay Mail are becoming more and more virulent in broadcasting their
hate messages against Islam, and due to this uncontrollable situation, we deem
that the time has come for us to provide a response against these hate
messages.
Before
we elaborate further, we shall remind the readers that the current laws which
govern this country and other countries in the world are founded by democracy,
as being said by Abraham Lincoln that democracy is the “rule by the people,
from the people and for the people”. Democracy is a method which empowers human
to fabricating laws for themselves, to regulate human lives in society and
country. Democracy itself was the result of Greek philosophy few hundred years
BC, while Islam was revealed 600 years after the birth of Christ (Prophet Isa
as.). So how could democracy, a cheap ancient philosophy to transform and
advance human lives by regulating laws from the human himself, when the human
mind alone is subjected to misguidance and misconceptions, then the betterment
of human lives from the laws devised from humans, is indeed a fallacy.
The
objectives of Nizamul Uqubat
(Punishment System)
1).
To punish those guilty of crimes, thereby acting as purification and reforming
them.
2).
To act as a deterrent for society from committing crimes.
3).
As means of a deterrent for those are victims of crimes.
In
spite of the above, punishment should be prevented as much as possible. Any
shred of evidence which is doubtful or circumstantial will prevent the
punishment being carried out. Indeed it was narrated in the life of Prophet
Muhammad (SAW) how he would exert himself to avert the punishment when
individuals asked punishment to be carried out on them. It was narrated that
Muhammad (SAW): “To free a criminal mistakenly is better to punish someone
innocent mistakenly”. Aishah (RA) narrated that, “Ward off punishment as much
as you can. If you find any way out for a muslim, then set him free. It is
better for an Imam to mistakenly granted forgiveness to a criminal than
mistakenly punishing an innocent individual”.
Islam
sets down punishment to protect and secure six issues for all citizens of the
state, whether muslim or non-muslim: belief, honour, mind, property, life and
offspring.
Belief:
The Islamic belief is the pillar of the deen and like any precious jewel, it is
protected. Therefore, anyone who wants to leave Islam after accepting it and
being advised, is subjected to the death penalty, and there is no difference
among scholars of jurisprudence (fiqh) on this. The same punishment is
applicable to anyone who slanders the belief of Islam.
Honour:
In Islam, women are protected of the honour from slander, harm and degrading
actions. Islam protects the dignity of women and by punishing those who even
backbite and slander accusations against her. Islam also protects the honour of
people by punishing those who spread slanders against them. Anyone who are
convicted in doing so, will punished eighty lashes.
Mind:
The use of alcoholic drinks and any other substances which befog the mind are
forbidden in Islam. Accordingly all social ills which are inevitable
consequences of such substances on the society are removed. The punishment for
the use of such substances is eighty lashes.
Property:
Islam protects the wealth of all citizens by securing a strict punishment to
offenders, such as cutting the hands of thief, which are subjected to all
conditions which apply here such as the value of goods, the place of theft, and
the types of goods.
Life:
Muhammad (SAW) said that: “The blood of a muslim is worth more than the Kaabah
and all its surroundings”. The punishment of murder is death, with the right of
the family of the deceased to forgive and demand blood money.
Offspring:
Islam secures and guarantees the correct lineage of people and their children,
and ensures that no child is wrongfully attributed to anyone other than their
own parentage. This is primarily achieved by forbidding and punishing illicit
sexual relations.
Only
those who are responsible for their actions are subjected to punishment.
Muhammad (SAW) said, “The pen (responsibility) is lifted from three: the insane
until he becomes sane, the child until he becomes mature, and a sleeping person
until he awakes.
The Types of Punishments
Hudud
is not the only punishment system. There are altogether four categories of
punishments laws that criminals can be subjected to. These are:
1). Hudud
a).
Fornication and adultery: The punishment of 100 lashes for fornication
(pre-marital sex) when the person is unmarried, and stoning to death for
adultery when the criminal is already married. Rape does not constitute hudud
punishment, because rape is different from fornication or adultery. Fornication
and adultery is illicit sex through the consent of both partners, but rape constitutes
the violation of the victim.
b).
False accusations (qadzaf): Where a
false charge f adultery is insinuated against a man or a woman, the punishment
is 80 lashes.
c).
Theft (sariqa): Where theft is the crime,
the punishment is cutting off the hnd of the criminal, provided seven
conditions are fulfilled concerning the circumstances of the crime.
d).
Consumptions of intoxicants (khamr):
Punishment of 80 lashes.
e).
Rebellion against the state (bugwah): Individuals or groups rebel against the
state with the motivation of disunity and division of the ummat, the punishment
is death.
f).
Apostasy (irtadad): Where a Muslim
changes his or her belief, and refuses to return after advice is given, the
punishment is death.
g).
Highway robbery (hiraba): Where
robbers attack passers-by on open highways, the punishment is cutting off the
hand and foot on opposite sides, or death of the crime led to death of the
victim.
In
these issues, if someone is proven guilty of the crime and all the conditions
for the punishment are fulfilled, there is no leniency or pardon for the
perpetrator. Muhammad (SAW) said, “By Allah (swear by the name of Allah), if
Fatimah my own daughter stole, I would cut her hand”.
2).
Jinayaat
(Qisas)
This
concerns crimes against the rights of an individual where the victim has the
option to demand punishment or forgive the criminal and demand blood money (diyat). It concerns mainly the issues of
killing and bodily harm, whether unlawful or accidental. For example, if
someone deliberately committed murder, the family of the victim could demand
that the perpetrator be killed, or they could forgive them and demand blood
money. The value of the blood money varies depending on the nature of the
crime.
Blood
money from the one who kills unintentionally i.e. manslaughter, is the
equivalent of 100 camels. Blood money from the one who kills with intention is
100 camels, 40 of which must be pregnant, or the equivalent monetary values.
It
was narrated by al-Nisaai and Darimi that Abu Bakar (ra) reported that the
Messenger of Allah (SAW) wrote to the inhabitants of Yemen and there was in his
letter: “Whosoever kills a believer unjustly will suffer retaliation for what
his hand has done unless the relatives of the murdered man consent otherwise.
And therein it was: A man shall be killed for the uder of a woman. And therein
it was: For the murder of a life, there is bloodwit of 100 camels…”
Another
HAdith narrated by Imam Nisaai mentions that every part of the body has blood
money, for example, the blood money for the eyes is equivalent to 50 camels.
3).
Ta’zir
This
is considered the right of the community. It covers those issues which are not
part of Qisas or Hudud, but which
affect the right of the community such as shouting in the streets, cheating in
the marketplace etc. The judge presiding over the case will study the severity
and nature of the crime and prescribe a punishment to match it from his own ijtihad (a study from the Islamic
texts). The punishments may range from everywhere between a warning to death.
One famous example happened in the time of Umar al-Khattab (ra), where he
punished a scholar who gave false testimony. Rape is covered in this category,
and not in hudud.
4).
Al-mukhalafat
This
covers the areas of the rights of the state. Here the crime is committed when a
person or group contravenes a law which the state has enacted, such a sbreaking
the speed limit or parking in no-parking areas. The punishment is at the
discretion of the judge, based on his own ijtihad
or the adoption of the state.
Laws of Evidences
There
are various ways in which the perpetration of a crime can be proved in court,
but these are restricted only to what which can ascertain definite guilt. For
example, circumstantial evidence like fingerprints on a murder weapon are not
in themselves sufficient to give 100% certainty of the guilt of the owner of
the fingerprints. Therefore, this kind of evidences alone is unacceptable in
the Islamic court. There are two types of testimony which can confer definite
proof:
1).
Eye witness tertimony. The testimony of some who has actually seen a crime
occurring is a valid evidence. However, this is only applicable in the cases
where the trustworthiness of the witness is proven. There is a special court
whose purpose is to verify the character, memory, intelligence etc. of any
witness who brought forward.
An
example of this is in the case of adultery (zina) where the testimonies of four
eye witnesses are required to prove the crime. Allah (SWT) says,
“As
for those of your women who are guilty of lewdness, call to witness four of you
against them”. [TMQ 4:15]
If
any of the witness fails to bring corroborating testimony, or someone who
accuses the crime cannot provide four witness, then they will be subjected to
punishment of qadzaf (false accusation).
2).
Confessions (iqrar)
T
is agreed that the criminal’s confession is sufficient for the establishment of
guilt and that, on the basis of this or her confessions, the appropriate
punishment can be inflicted.
Abu
Daud narrated that: “A woman of Ghamdi came to the Prophet (SAW) and said: “I
have committed a punishable sexual act”. He (SAW) replied, “Go back”. She then
returned and on the next day came to him again and said, “Perhaps you want to
send me back as you did to Ma’az ibn Malik. I swear by Allah that I am
pregnant”. He (SAW) said to her, “Go back”. She returned to him the next day.
He (SAW) said, “Go back until you give birth to the child”. She left. When she
gave birth to the child she brought the child to him, and said, “Here he is. I
have given birth”. He said (SAW), “Go back and suckle him until you wean him”.
When she had weaned him, she brought the boy to him with something in his hand
which he was eating. The boy was then given to a certain man of the muslims and
the Prophet (SAW) commanded regarding her. So a pit was dug, and he gave orders
about her and she was stoned to death”.
If
however the confessor were to withdraw his or her confession, then the
punishment would be stopped immediately, as guilt could no longer be definitely
substantiated. This would also be the case if, for example during the
punishment the confessor ran away or began to protest.
Punishment as the last
resort
It
must be noted that the punishment administered by the Islamic state are the
last resort in the process of curbing and preventing crime. Islam, comes as a
deen (way of life) where ALL the systems must in harmony, making an integrated
and perfectly complementary whole.
Thus,
the Economic system will ensure all citizens of the State will have their needs
adequately fulfilled such that no-one need resort to crime to sustain
themselves. As well, the Education system will teach the people the mentality
of rejecting any crime, all of which are forbidden in Islam, in favour of
obedience to Allah (SWT). And the Social system will inculcate within the
people the mentality of respect and dignity towards the opposite sex, and the
segregation between men and women in their dailt life will minimise the
possibility of crimes in this area.
In
the Islamic state, the prevention of crime works on three levels:
1).
The fear of Allah (taqwa) of the believer.
The
muslim has conviction in the rational creed of Islam, which is built upon the
study of reality and use of them mind. This gives them the definite foundation
for their belief in Islam and motivates them to be subservient to the One and
Only True God, Allah (SWT).
Crime
is the disobedience to Allah (SWT). The muslim’s longng for the Paradise and
their fear of the punishment of Hell wil prevent them from committing crime.
2).
Public opinion.
It
is one of the mutual rights and duties of the muslims that they always look out
for and take care the affairs of each other. Thus there will be a constant
motivation and encouragement from all sides for people to observe the Islamic
conduct.
Crime
will be shunned and rejected by the society at large. Criminals and cheats will
not be accepted, nor will wealth or any perceived benefits gained illicitly be
respected. This pressure from the dominant values in the society will prevent
those who are tempted to commit crime from doing so.
3)
The punishments.
The
last resort is the fear of the consequences of the criminal actions in terms of
the punishment. It is for these reasons that so few incidences of
implementation of hudud and other retributions by the judiciary were necessary
in the history of the Khilafah.
A rebuttal of the
claims of SIS on hudud laws: Claim on rape
punishments
Rape
does not constitute punishment of the Hudud law. Although punishment of rape by
hudud law was being gazetted by the Brunei government from the “Syari’ah Penal
Code Order 2013”, this has no basis from the Quran and the Hadits of the
Prophet (SAW). With regards to crimes of illicit sexual relations, with the
consent of both or more than two parties involved, only fornication and
adultery constitutes hudud punishment. Whereas rape, which represents the
violation of one party and the victimization of the other, does not constitute
punishment through hudud laws.
Claims that the
implementation of hudud will decrease economic productivity
They
claim that once the hand of thief is being cut-off, the offenders will lose
their ability to work and cannot sustain himself and his family. This claim is
baseless, due to the fact that of the offender is indeed poor and needy, and
steals out of hunger and desperation, there is no cutting off the hands, since
it does not fulfils the conditions of the punishment. On the other hand, the
man-made democratic laws are the source of discontent and economic hardship. How
can economic productivity increase when most people are too afraid to stay
working late at night, out of the fear being robbed and rape? How to increase
economic productivity when petrol stations are sealed off from the public late
at night out of the fear being robbed, and the only way to purchase item is
through the small security counter? Although Saudi Arabia does not reflect the
true scale implementation of the Islamic punishment systems, take a trip to
Mecca and Madinah, where Islamic punishment law is implemented and watch how
gold and jewellery merchants sell gold, jewellery and precious item over the
counter unguarded and without fear, day and night. Such the case is not present
here, even with CCTV, armed guards, gold and jewellery premises still get
robbed, over and over again. And truly in this country a huge amount of money
must be allocated for the instalment of the CCTV security system, the salaries
of armed security guards etc, and all these are costly and decrease economic
productivity.
Artikel Sumbangan Prof. Wan Jeffrey
"Belief: The Islamic belief is the pillar of the deen and like any precious jewel, it is protected. Therefore, anyone who wants to leave Islam after accepting it and being advised, is subjected to the death penalty, and there is no difference among scholars of jurisprudence (fiqh) on this. The same punishment is applicable to anyone who slanders the belief of Islam."
ReplyDeleteSo you are saying that hudud is applicable to non muslim as well.
This comment has been removed by the author.
DeleteWhen muslims under the Caliphate open various lands, they establish a complete system of governance, where all citizens were subjected to the laws of Islam. And these complete system prevailed in vast centres of civilization such as Andalucia (Iberian peninsular), Persia, Turkey, North Africa, when the Europeans were still living in their dark ages. The whole ruling system of Islam lasted for 1300 years until it was destroyed in 1924. When the colonialist invaded the lands, they replaced once Islamic systems: the economic systems, punishment systems, social systems, education systems with the systems of their own. This was the beginning of human suffering and decline, in all aspects of life, social, education, economic (inflation, unemployment). In any country, whether Capitalist or Socialist/Communist, there are no separate laws which governed society, i.e. one set of laws for a group of people and another set of laws for the other. Similarly in a Khilafah State, there can be no separate laws for a group of people and another set of laws for a different group. When the British colonialized Egypt and Iraq, they replaced the existing systems to their own laws, and did not apply different laws to the muslims or Christians populations.
DeleteA Jewish Rabbi on the future of Islam:
http://www.youtube.com/watch?v=9aEPemq6ecEhttp://www.youtube.com/watch?v=9aEPemq6ecE
Rabbi admits that Islam is the religion of truth with English subtitles
The reality during the Malacca sultanate, the Islamic punishment system were implemented although not entirely. But when the European colonialist came and occupied this land, especially the British, replaced Islamic laws with their own common law and their implementation did not distinguish between non-muslims and muslims. Similarly, the implementation of Islamic laws does not distinguish between muslims and non-muslims.
ReplyDelete