Below is Prof. Mohammad Hashim Kamali’s critique of the Kelantan Hudud as the article appeared in the Arab Law Quarterly. — updated
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Dr Chandra Muzaffar wrote a commentary titled ‘PAS’s ill-conceived hudud move‘ which was published by Astro Awani on 23 April 2014.
By Dr Chandra Muzaffar
From media reports, it appears that the Islamic Party of Malaysia (PAS) is determined to table a Private Member’s Bill in the June session of the Dewan Rakyat that will seek to facilitate the implementation of hudud — the Islamic penal code — in Kelantan. The implementation will be based upon the Hudud Bill adopted unanimously by the Kelantan State Legislative Assembly in November 1993.
I shall attempt to appraise the wisdom of doing this from three closely inter-related perspectives — the concept of hudud in general and as enunciated in the Bill; the practice of hudud in other countries; and the local context in which hudud would be implemented.
The Kelantan Hudud Bill has been subjected to a comprehensive analysis in Mohammad Hashim Kamali’s Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan (Kuala Lumpur: Institut Kajian Dasar, 1995). Kamali, one of the world’s leading Islamic jurists, reveals in detail the weaknesses of the Bill, including those pertaining to its categorisation of hudud offences and how it contradicts the Quranic prescription on punishments and why it conflicts with the Malaysian Constitution and the Penal Code. All members of Parliament, from the government and the opposition, Muslims and non-Muslims, should digest the contents of the book before debating the PAS sponsored Bill.
They will realise that the PAS approach is focussed essentially upon modes of punishment and not upon the fundamental principle of justice which is the overriding concern of the Quran. When justice is one’s leitmotif one would first strive to ensure that the social ethos and the power structure conduce towards equity and fairness rather than preoccupy oneself with detailed descriptions of how different forms of punishment would be meted out. Besides, the concept of hudud — or boundaries — in the Quran has a much wider and deeper meaning and is not confined to its penal aspects. It is also employed in relation to fasting, family laws and inheritance and indeed embodies all of God’s teachings and guidelines. By over-emphasising punishment, PAS has also side-lined provisions on repentance and reformation which are crucial to all those instances in the Quran where punitive measures are mentioned in the context of specific offences. — Continue reading Dr Chandra’s article HERE.
Dr Chandra strongly advocates that all MPs be they Muslim or non-Muslim, and whether they’re from the ruling party or the waffling opposition [particularly the evangelista-controlled DAP] should read and understand the comprehensive analysis by Mohammad Hashim Kamali – one of the world’s leading Islamic jurists – of the PAS hudud bill that was passed by the Kelantan state assembly.
The Hudud Bill Debate
By Mohammad Hashim Kamali
One of the major events of the 1990s that merits attention in discussing Shari’a-related developments in Malaysia is the Kelantan Shari’a Criminal Code (II) Bill, known as the Hudud Bill, which was passed in November 1993 by the State Legislative Assembly of Kelantan.174
The Bill has, however, become controversial and remained in abeyance ever since for want of approval by the Federal Government. This is due to the fact that the Bill imposes a structure of punishments which exceed the jurisdictional limits of the Syariah courts under the constitutional specifications of the State List. The Syariah courts have limited jurisdiction in criminal matters under federal law and can only deal with offences punishable with imprisonment up to three years or a fine not exceeding RM5000 or caning up to six strokes.
It has also been argued that a constitutional amendment would be needed to create the necessary jurisdiction and it would require two-thirds majority in Parliament, making it necessary for Umno to enlist the support of its non-Muslim coalition partners, which would be very difficult to obtain.
The Islamic party of Malaysia, PAS, which is the ruling party of Kelantan, under the leadership of its enigmatic leader and Chief Minister, Nik Aziz, has protested over the delay in the enforcement of the Hudud Bill, which has to date been met with an equally resolute response from the Federal Government, especially the Prime Minister, Dr. Mahathir Mohamad, who has taken the centre stage in the debate that became a familiar media topic in recent years.
The issue over the Hudud Bill has remained unresolved as of this writing, but the debate has brought the wider subject of the applicability of Shari’a in Malaysia into sharp relief. Many writers and public figures have spoken over the various aspects of the Hudud Bill and the prospects generally of the Islamisation of law and government in Malaysia. This debate is unusually candid since the parties involved therein include not only the public and the media, but the state and federal governments whose leaders are called upon to clarify their positions, often in response to particular developments.
The Hudud Bill itself consists of (72) clauses and five supplementary schedules, divided into six parts, namely hudud (prescribed) offences, qisas (just retaliation), evidence, implementation of punishments, general provisions, and (Shari’a) court proceedings.
The hudud offences in part one also appear under the six headings of theft, highway robbery (hiraba) unlawful carnal intercourse (zina), qadhf that is, slanderous accusation of zina which is not proven by four witnesses, wine-drinking (shurb) and apostasy (irtidad). The structure of the punishments that the Bill has introduced and the detailed manner of their implementation read like a reproduction of the all too familiar textbooks of classical fiqh on the subject. Commentators have, in fact, stated that the Hudud Bill has adopted the renowned Shafi`i jurist Abul Hasan al-Mawardi’s (d. 450 H) Kitab al-Ahkam al-Sultaniyya, and merely changed its style into a statute book format.
Thus the Bill has incorporated punishments ranging from the mutilation of the hand for the capital offence of theft, lapidarian for a proven offence of zina, death punishment for hiraba, and flogging for wine drinking(shurb) and slanderous accusation, or qadhf, without actually taking into account the realities of contemporary society in Malaysia.
PAS has maintained the view that Muslims have no choice but to accept the proposed legislation: They cannot pick and choose what they consider reasonable and leave out the rest. Muslims who question the hudud were told that they were merely ill-informed and influenced by the liberal secular West, which regards such laws to be barbaric. Any doubts concerning the introduction of hudud that are expressed are put down to lack of understanding, even ignorance, on the part of others.
The PAS leaders have hardly, if ever, raised the question as to whether there might be a case that they too should make adjustments and move away, perhaps, from their undiluted taqlidi attitude and take the prevailing conditions of society into consideration.
Six years elapsed since the introduction of the Hudud Bill during which the PAS-led government has not changed its typical posture concerning the said Bill. Note, for example, the announcement in mid-February 1998 bearing the title “Kelantan to Explain Hudud Laws,” (Sun daily, Kuala Lumpur, 11 February 1998) where the Chief Minister Nik Aziz is quoted to have said that his administration “is intensifying efforts to disseminate information on hudud law to expedite its implementation in the state.” He added that this is “urgently required as it can help solve many problems that other laws are unable to solve.” These include, he said “economic matters and social ills which burden society.”
The Chief Minister has thus made clear that all he needed to do is “to explain hudud laws” not that he would need to look at the society around him or to consider even the possibility that the implementation of hudud may prove unfeasible and problematic, and learn, for instance, from the experience of Pakistan. The hudud experience in Pakistan has clearly been less than successful, partly due to the equally dogmatic approach taken toward the subject by the late General Zia.
The issues need to be looked at from different angles and any decision that is taken needs to be harmonious with the dictates of reality and wisdom. The PAS leaders have repeatedly said that Malaysians of other faiths should neither be fearful nor suspicious of the hudud because Malaysians are by-and-large law-abiding, family loving and religious. Because of this, all Malaysians will eventually accept the hudud as they are meant to protect their lives and properties and enhance their peace of mind.
To this, it is added that the prisons are over-crowded and financially burdensome. Enforcement of the hudud would drastically reduce these problems because once an individual is tried, convicted and punished, he or she is released. The PAS government has moreover stated that under the hudud administration, reform and rehabilitation programmes will be made available for the convicts.175 The Kelantan authorities have been active in some other areas too, introducing, for example, the Shari’a law of evidence, and several municipal by-laws designed to facilitate a general enforcement of the Shari’a.
PAS has evidently demanded a total implementation of the Shari’a, a demand which, as one observer noted, is difficult to refuse “because it involves basic faith and has an emotional appeal which can grow out of hand”.176
This aspect of the Hudud Bill scenario has been evident as from the outset and began on that note in so far as the proponents of the Bill saw their act as a religious duty and a dogmatic initiative rather than a response to the dictates of law and justice in society. In his initial announcement in November 1993 in which he informed the public of the ratification of the Bill by the State Assembly, the Chief Minister of Kelantan went on record to explain the committee work and participation of the ulema in the drafting of the Bill and then added that the State Government was “performing a duty required by Islam”, and “failure to act in this regard would be a great sin”.177 As to the question whether the people had accepted the state government’s plan to implement the hudud laws, the Deputy Chief Minister (Abdul Halim) made the remarkable announcement that “the question did not arise as Muslims in the State who rejected the laws would be considered murtad (apostate)”.178
Razaleigh Hamzah criticized the dogmatic approach of the Kelantan government in saying that “the implementation of Islamic law must not be considered solely for its implementation aspect, but how the law can solve the problems of today’s society”.179 Referring to the PAS totalitarian demand, Razaleigh Hamzah added that “there are many obstacles in complying with this demand”, and then suggested that the implementation of Islamic law in Malaysia should be determined by democratic means. The Muslims of Malaysia should decide “as to who should have the mandate to implement the teachings of Islam”. Can Islamic law be implemented and “function effectively in a country in which the system of government is not based on the philosophy and the teachings of Islam”?180
The general tenor of the critique that the federal government has advanced of the Hudud Bill is similar to that of Razaleigh Hamzah’s and it is basically over the prospects of attaining justice. They have voiced the fear that in the event where the hudud are applied only in a part of Malaysia and as an isolated case from the rest of the Shari’a, they may fail to achieve justice.
Prime Minister, Dr. Mahathir stated the position of his government most explicitly when he said that “the Government would not sit back and allow PAS to commit cruel acts against the people in Kelantan, including chopping off the hands of criminals”. The Prime Minister added that “the Government would take action against the PAS-led Kelantan Government if it implemented the Pas-created Hudud laws”. Dr. Mahathir elaborated that the Hudud Bill amounted to discrimination against Muslims in cases, for example, when two people, a Muslim and non-Muslim, committed a crime, only the former is subjected to a heavy punishment but the latter is not. The PAS version of the Hudud law “punishes victims while actual criminals were often let off with minimum punishment; this is against the Islamic spirit of justice”; and therefore “against the true teachings of Islam”.181
In his 1996 publications, The Asian Renaissance, the then Deputy Prime Minister of Malaysia, Anwar Ibrahim, spoke explicitly on the hudud issue. In an attempt to read this issue in the general context of Southeast Asian Islam, Anwar Ibrahim wrote that “the proponents of the imposition of Muslim laws or the establishment of an Islamic state are confined to the periphery”. Southeast Asian Muslims prefer to concentrate on economic growth and eradication of poverty “instead of amputating the limbs of thieves”. They do not believe it would make one less of a Muslim to promote economic growth, to master the information revolution and ensure justice for women.182 With reference again to the hudud, Anwar Ibrahim added that he is supportive of Yusuf al-Qaradawi’s advocacy for figh al-awlawiyyat, the understanding of the priorities of Islamic law, and wrote that “the application of the hudud … is not necessarily among the top priorities of contemporary Muslim societies”.183 Many issues have been raised over the detailed provisions of the Hudud Bill, which I have elsewhere discussed in detail, but I now turn to a Shari’a-based critique of the Hudud Bill.184
A Juridical Analysis of the Hudud Bill
The quest to find ijtihad-oriented solutions to the hudud-related issues in modern times would need to reflect on a number of points concerning not only a fresh approach to interpretation of the source evidence but also matters relating to a Shari’a-oriented policy (siyasa shar`iyya),185 the basic concept of hadd in the sense of a fixed mandatory penalty, and considerations, above all, of equality and justice.
The rules of Islamic jurisprudence are clear on the point that interpretation and ijtihad has no place in the face of a clear text (nass). The question here is, however, a more foundational one, which is concerned with the understanding of the nass itself. What is submitted here is that conventional attitudes toward the understanding of the ayat of the Qur’an in which fixed penalties occur in reference to specified offences have focused only on a portion of the nusus and by choosing to do so neglected the Qur’anic provisions on rehabilitation and repentance, which are integral to the nusus in question, but which have almost been totally ignored.
When this is admitted to be the case, as I shall presently show that it is, then the methodological ruling that ijtihad has no place in the face of a clear nass does not apply until the nass itself is clearly known and understood. I shall take up each of these points separately as follows.
The Qur’an has laid down specific punishments for four offences, namely theft, adultery, slanderous accusation (qadhf) and highway robbery (hirabah). This by itself is evidence enough to preclude the two other offences, namely shurb (wine-drinking) and apostasy (ridda) from the purview of hudud. For hadd by definition is an offence for which the text prescribes a punishment and the Qur’an specifies no punishment for these two offences.
The question may be asked as to why did the Hudud Bill of Kelantan extend the scope of the hudud from four to six offences in the face of clear evidence that would justify their confinement to four?
This is, however, an incidental although a relevant point — our main point here is concerned with the fact that on virtually every one of the four instances where the Qur’an specifies a punishment for an offence, there is also a provision on repentance, forgiveness and reformation. This is not an incidental but a consistent feature of the Qur’anic evidence so much so that any reading of the text which isolates its provisions on repentance is bound to be deficient. But this is precisely the point: juristic expositions of the hudud have relegated to insignificance the Qur’anic references to repentance. Our argument here is that the Qur’an has prescribed a fixed punishment for these offences, which are, however, not mandatory, simply because all provisions on fixed punishment are immediately followed by provisions on repentance in every case, and this cannot combine the idea of mandatory enforcement.
We note a dual emphasis in the Qur’an in relationship to hudud, one of which is on punishment and the other on repentance, but the conventional fiqh, as well as the Hudud Bill of Kelantan, have upheld the first and ignored the second. This is presumably because the hudud were somehow perceived to be mandatory leaving the judge with little discretion but to enforce them once they are proven by valid evidence. It is submitted that taking this position entailed a departure from the Qur’anic vision on hudud concerning rehabilitation and repentance. We now briefly address each of the four hudud crimes separately as follows:
1. Theft (Sariqah)
The Qur’an provides concerning the punishment of theft:
As to the thief, male or female, cut off his or her hand as retribution for their deeds and exemplary punishment from God. And God is exalted in power, Most Wise. But if the thief repents after his crime and amends his conduct, God redeems him. God is forgiving, Most Merciful. (al-Ma’idah, 5:38-39)
The Hudud Bill defines theft as “an act of removing by stealth a moveable property from the custody or possession of its owner without his consent and with the intention to deprive him” (Clause 5). The next clause makes the offender liable to a three-fold punishment as follows:
(a) for the first offence the amputation of his right hand;
(b) for the second offence with amputation of part of his left foot; and
(c) for the third and subsequent offences with imprisonment for such term as in the opinion of the court may likely to lead him to repentance. (Clause 6)
The Bill then provides a 15-item list, under clause (7), of the mitigating circumstances wherein the capital punishment of theft shall not apply but the court may impose a lesser punishment. These circumstances specify the minimum monetary value of the stolen goods, the standards of proof, whether the owner has taken proper care to guard against theft, and whether the offence is committed within the family, among partners, or in stressful circumstances of starvation and hunger and so forth.
The Bill has clearly opted for the most unforgiving and severe stance concerning the second offence of theft, which is punishable by amputation of a part of the left foot “in the middle of the foot in such a way that the heel may still be usable for walking and standing” (Clauses 6 and 52). The scholastic fiqh has admittedly validated the second amputation but it has been disputed, for the simple reason that the Qur’an has not validated it. Two prominent Companions, Ibn `Abbas and `Ata’, are reported to have held that no further amputation is valid for the second and subsequent theft, and supported this by citing the Qur’anic text “And your Lord never forgetful” (Maryam, 19:64).
Ibn Hazm has strongly criticised the majority ruling here and expressed consternation that such drastic positions are taken without there being any evidence in the sources to support them.186 El-Awa’s enquiry into this has also led him to the conclusion that the minority view on this is “nearest to the spirit of Islamic law.” 187 There is clear guidance in the Sunna to the effect that in matters of punishment, the ruler and judge should adopt the course that is inclined toward leniency, not toward severity and hardship. This naturally gives rise to the question as to why did the drafters of the Hudud Bill take the harsher of the two available positions.188
Furthermore, while the first part of the above text prescribes a punishment, the latter portion thereof moderates that position by opening the door to repentance to one who repents and takes measures to amend his conduct, and the text ends by the affirmation that God is merciful and forgiving. The reference to repentance in the text which occurs in the phrase `faman taba’ (one who repents) is immediately followed by the phrase “wa aslaha” (reforms himself). The language of the text clearly conveys the understanding that punishment should not be hastily enforced, nor should it be enforced regardless of the inclination and willingness of the offender to reform himself. Reformation and repentance naturally takes time and come as a result of enlightenment and education. The convict should not only be given time in which to reflect and repent but also that this should be facilitated, on a selective basis at least, by positive incentives.
Now to maintain the view that the Qur’anic punishment here is fixed and mandatory is equivalent to turning a blind eye to a portion of the text which is integral to its intention and purpose, and this is basically the position which has prevailed in the established doctrine of the madhahib, and then followed in the Hudud Bill of Kelantan.
A point may also be made as to the implication of the words “al-sariq wa’l-sariga” (male and female thieves) in that these are adjectives, not verbs, and adjectives do not materialise in a person without a measure of repetition. A person is not, for instance, described as `generous’, `honest’ or `liar,’ merely by a single act of generosity, honesty or lying. These adjectives carry their full meanings when there is recurrence and repetition. Since the text here uses `thief’ as an adjective, it may be said that the punishment it has devised should apply to recidivists but not to first time offenders.189
This is yet another consideration in the understanding of the text under review which has not been taken into account in the conventional hermeneutics of this text. Abu Zahrah has cited, in this connection, the incident which occurred during the time of the second Caliph `Omar b. al-Khattab. A young offender was charged with theft and the charge was proven, but before the punishment was carried out, the mother of the convict asked the Caliph: “Pardon him O Commander of the Faithful, for it was his first time.” The Caliph granted the plea and said “God is too merciful to reveal the nakedness of his servant for his first failure.”190
Two other Qur’anic ayat need to be reviewed on the subject of repentance, one of which declares that “Repentance with God is only for those who do evil in ignorance, then turn to Him soon. It is to these that God turns with mercy.” (al-Nisa’, 4:17) This clearly means that the Qur’an opens the door of repentance, not to recidivists and hardened criminals, but to those who fall in error and are subsequently inclined to reform themselves. But the broader and more encouraging tone of the Qur’an on the subject of repentance is conveyed in the text where it is declared that “God loves those who turn to Him in repentance and who are willing to purify themselves.” (al-Baqarah, 2:222)
The leading schools of law have ruled that repentance is only valid in the hudud offences when it is attempted before the offence is completed and reported to the authorities, but that once it is reported and action is taken, there is no place whatsoever for repentance. This is tantamount to imposing an unwarranted limitation on the more versatile and humane provisions of the Qur’an.
The jurists may have their reasons, reasons that were deemed suitable for their time, but if we find that we can apply the Qur’an to the realities of contemporary life in the Muslim community while following in the meantime the clear provisions of the text, then juristic formulations that may stand in the way of this more open approach need not be given too much weight.
If repentance were to have a meaningful role in the legal proceedings of the hudud, then that role must surely not be confined to inchoate crimes nor only to the pre-trial stage but should logically be extended to the entire criminal process, before and after prosecution and trial. This would necessarily mean a change in the conventional perceptions of the hudud, a transition, that is, from mandatory enforcement to a non-mandatory punishment that is amenable to considerations of rehabilitation and reform.
2. Adultery and Fornication (Zina)
The Qur’anic text on the punishment of zina is as follows:
The woman and the man guilty of zina, flog each of them one hundred lashes. Let not compassion move you in their case from carrying out God’s law, … unless they repent thereafter and mend their conduct, then, God is Forgiving, Most Merciful. (al-Nur, 24:2-5)
Clause (10) of the Hudud Bill defines zina as “an offence which consists of sexual intercourse between a man and a woman who are not married to each other and such intercourse does not come within the meaning of wati sybhah (intercourse by mistake or in doubtful circumstances) as defined in subsection (3).
If the person who commits zina is “a mohsan (married person), such offender shall be punished with the punishment of rejam, being the punishment of stoning the offender with stones of medium size to death.” (Clause 11-1). If the perpetrator of zina is “ghayru mohsan (unmarried), such offender shall be punished with the punishment of whipping of one hundred lashes and in addition thereto to one year of imprisonment.” (Clause 11-2).
The Bill identifies a “mohsan” as a person who is “validly married and has experienced sexual intercourse in such marriage”. A `ghayru mohsan’ is on the other hand one who is not married or “is already married but has not experienced sexual intercourse in such marriage” (Clause 10.2). The Bill makes no further reference to the current state of the marriage as at the time when the offence is committed. It thus matters little if a person, although once married, has separated or divorced and has had no access to his/her spouse for a long time.
Muhammad ‘Abduh and has disciple Rashid Rida have held that the punishment of zina is only applicable to offenders who at the time of committing the offence were parties to a valid marriage. As for the offender who has married once, but is no longer married, he or she should be punished lightly or at most equal to that of the unmarried offender.191 Abu Zahrah has also reached the conclusion that there is no clear text to determine that a person who has been divorced or whose spouse had died should be classified as muhsan. He then writes that when there is a separation or divorce, the person no longer qualifies as a muhsan, and does not qualify for the punishment of rajm.192
The Hudud Bill is completely silent on this and has, once again, taken the harsher of the two available approaches to the definition of muhsan. There is also no clear authority for the additional one year imprisonment which the Bill has stipulated for unmarried offenders. How can this extremist approach toward severity be justified in the light of so many temptations to promiscuity and zina to which the individual is exposed under the prevailing conditions of modern society?
A glance at the Qur’anic text above is enough to show that the prescribed punishment of zina is followed by the provision concerning repentance in much the same manner and style as in the text concerning the punishment of theft. The language here is also general and unqualified in that it does not distinguish between married and unmarried persons nor is there any reference to their age, first instance or repetition and so forth.
According to the rules of interpretation that are known to usul alfiqh, a general (`amm) text must be applied as it is and no limitation must be imposed on it unless there is clear evidence that would warrant a departure from that position.
The Sunna has drawn a distinction between the married and unmarried person and enacted rajm (stoning to death) for the former while retaining the Qur’anic punishment of 100 lashes for the latter. This is said to be a case of specification (takhsis) of the general ruling (`amm) of the Qur’an by the Sunna, according to the jumhur. The potential conflict between the variant rulings of the Qur’an and Sunna on the punishment of zina is thus resolved by recourse to takhsis.
The Qur’an itself prescribes that the, punishment of zina applies only when the charge is proven by four eye-witnesses, which is almost impossible to obtain. There has not, in fact, been a single instance of the proof of zina in the entire history of Islam by this method, and in nearly all the recorded cases, the proof consisted of confession and circumstantial evidence, such as pregnancy and childbirth. Circumstantial evidence is normally not accepted as the principal means of proof in hudud crimes, but there is precedent that the Caliph `Umar Ibn al-Khattab has accepted pregnancy as proof of zina.
The punishment of zina, whether flogging or rajm, is applied only when the charge is proven by valid evidence. The fact that the Qur’an requires four eye-witnesses for proof is a definite indication that the Shari’a does not encourage a liberal approach toward prosecution and punishment in claims of zina. This attitude of restraint has, in fact, been endorsed by the Sunna and also generalised to all of the hudud offences.
Thus it is provided in a hadith, reported by the Prophet’s widow, `A’ishah:
The Prophet, peace be on him said: “Avoid condemning the Muslims to hudud whenever you can, and when you can find a way out for a Muslim then clear his way. If the Imam errs, it is better that he errs on the side of forgiveness than on the side of punishment”.193
While recording this hadith, Abu Yusuf has also quoted the second Caliph ‘Umar b. al-Khattab to have commented that “I prefer to suspend rather than implement the hudud in cases of doubt.”194
This should have been the basic attitude toward the hudud, which has, however, not been the case. The history of hudud has followed a different course and a degree of rigidity has developed concerning the hudud which is in contrast with the spirit of the foregoing evidence. The Hudud Bill of Kelantan has not only followed the hallowed tradition of taqlid concerning the hudud but actually went on to expand the scope of the hudud, from four to six offences, admitting circumstantial evidence in the proof of the hadd of zina, and failing to draw any distinction between zina and rape – as I shall presently explain.
The Hudud Bill has come under heavy criticism for its total silence over the problem of rape. The Bill addressed the subject of zina but did not even mention rape, and failed to distinguish the one from the other. In the absence of such a distinction, zina in this Bill is likely to subsume rape, which means that the two offences fall under the same rules. This is all the more likely in view of Clause 46(a) of the Hudud Bill which provides:
In the case of zina, pregnancy or delivery of a baby by an unmarried woman shall constitute evidence on which to find her guilty of zina and therefore the hudud punishment shall be passed on her unless she can prove to the contrary.
The Bill thus places the burden of proof squarely on the shoulders of the pregnant woman, or a woman who has given birth to a child “to prove to the contrary” in that she had not been a consenting party to zina.
To apply the rules of zina to rape would thus mean that the rape victim must bring four male witnesses, as required in Section 40(2) of the Hudud Bill, to prove the charge against her attacker, failing which she would be liable to the hadd punishment. The burden of proof which normally lies with the prosecution has here been shifted to the defendant to prove that she has been the victim of coercive force. This is totally unjust, and places an almost impossible burden on the pregnant woman to find the required witnesses, as she would almost certainly be unable to find.
Notwithstanding the media coverage and public criticism that has been voiced over this issue in 1993 when the Bill was passed, and ever since, the government of Kelantan has not responded but has, on the contrary insisted on retaining the clause as it has been drafted. To prove rape, the victim has to produce four male witnesses of just character who can testify that they have actually seen the act of penetration under coercive force and if she fails, she can be prosecuted for zina; she can also be found guilty of qadhf for failure to prove the charge.
Unless the rapist makes a confession, which he can in any case withdraw later, the woman is doomed to be punished either for zina or for qadhf. It is strongly advisable therefore, to separate zina from rape in respect of both definition and the procedure of evidence and proof, and also to shift the burden of proof, in the case of rape, from the defendant to the prosecution.
Two other points may briefly be made here concerning the punishment of rajm for zina, one of which relates to the possibility that the Prophet, peace be on him, may have applied rajm prior to the revelation of the Qur’anic ayah in sura al-Nur at a time when there was no fixed ruling on this matter, and that he consequently covered the matter under shara’i`man gablana, that is, revelation prior to the Shari’a of Islam.
In this case, the Prophet might have applied the ruling of Torah at the initial stages until the revelation of sura al-Nur. Rajm was originally introduced in the Torah which was applied by the Jews and the Bible did not overule it; since the Old Testament was also a proof on the Christians, they too applied it. The continued validity of rajm under the previous revelations is likely to have invited attention before the Qur’an made a ruling on the subject.195 The second point of information that may be given here concerning rajm relates to the Qur’anic ayahin sura al-Nisa’ (4:25), which I shall presently explain.
To elaborate the first point a little further, I refer to Abu Zahrah who has drawn attention to a hadith, recorded in Sahih al-Bukhari, to the effect that one of the followers (tabi`un) asked a learned Companion, whom Abu Zahrah has referred to as “a mujtahid among the Companions, ‘Abd Allah Ibn Abi Awfa, whether the sura al-Nur which prescribed the punishment of flogging for zina, was revealed before or after the ruling of the Sunna on rajm, to which Abi Awfa gave the answer that “I do not know (la adri).”196
This tends to introduce an element of doubt (shubha) in the chronological order of the two rulings, namely rajm and flogging for zina. If it is assumed that the sura al-Nur came later, then this may be taken to have abrogated the ruling of the Sunna on rajm and enacted a uniform penalty of 100 lashes for all cases of zina. But the jumhur ulema have not accepted this analysis and maintained that sura al-Nur preceded the hadiths on rajm, in which case there is no case of abrogation, but of the specification of the general (`amm) of the Qur’an by the hadith.
Abu Zahrah has also discussed, in this context, the views of the Kharijites and those of some Shi’ah and Mu’tazila to the effect that there is no other punishment for zina in the Shari’a other than flogging: Had God Most High intended to validate stoning, the Qur’an would have stipulated so.
Since stoning is the most severe of all punishments, it needs to be proven by a decisive text, that is, the Qur’an or hadith Mutawatir. There is no ruling on it in the Qur’an and the ahadith concerning rajm, including the well-known cases of Ma’iz and Ghamidiyya are all Ahad and fall short of Mutawatir.
Furthermore, a brief examination of the Qur’anic ayah that is quoted below also confirms flogging to be the only Qur’anic punishment for zina. This ayah has, in fact, been quoted by the opponents of rajm, including the Mu’tazila and Kharijites. The ayah thus provides:
And whoever among you cannot afford to marry free believing women, let him marry such of your believing maidens as your right hands possess … so marry them with the permission of their families … Then if they are guilty of adultery when they are taken in marriage, they shall suffer half the punishment of the free married women. (al-Nisa, 4:25)
This ayah validated marriage with women who were taken prisoners of war at the time. But what is of interest in it here is that it takes for granted the continued validity of the ruling in sura al-Nur to the effect that the punishment of adultery by a married woman is flogging of 100 lashes, not stoning, for the text enacts half of this as punishment for married slave women. Had the text, in other words, validated stoning for a married woman, than it would fail to make any sense, as stoning cannot be halved. Hence the conclusion that flogging is the only Qur’anic punishment for all cases of zina.197
3. Slanderous Accusation (Qadhf)
The Qur’anic text on slanderous accusation (qadhf) is as follows:
And those who accuse chaste women and fail to produce four witnesses, flog them eighty lashes and reject their testimony ever after, for they are transgressors — except for those who repent thereafter and reform themselves, then God is forgiving, Most Merciful. (al-Nur, 24:4-6)
This text is also self-evident on the provision of repentance for slanderous accusers who repent after committing the offence and reform themselves. Repentance by itself is thus not enough unless it is accompanied by actual manifestations of reform. But even when the slanderous accuser repents, he may have already inflicted indelible damage on the good name and reputation of his victim. This is perhaps why the Qur’an penalises him with an equally long-standing supplementary punishment, which is that his testimony may never be accepted again.
The conventional discourse on hudud and the fiqh rules on the subject of slanderous accusation do not make adequate provisions to make repentance an integral part of the law of qadhf.
Clause (12) of the Hudud Bill provides that “Qazaf is an offence of making an accusation of zina, being an accusation which is incapable of being proved by four witnesses, against a Muslim who is akil baligh and known to be chaste.” Qazaf under this Bill can also be committed “by saying that a particular individual is not the parent or not the off-spring of a particular individual” (Clause 12.2). The perpetrator of qazaf “shall be punished with eighty lashes of whipping and his testimony shall no longer be accepted until he repents.” (Clause 13)
The Bill is totally silent on whether the wishes of the victim of qadhf (i.e. the magduf) is of any relevance to the enforcement of the prescribed punishment. The leading schools of law are in agreement that the punishment of qadhf is not enforceable unless it is requested by the magduf, for it consists mainly of the violation of the Right of Man and in this sense it resembles qisas (just retaliation) both of which may be pardoned by the victim. It is then added that once the prosecution has begun concerning qadhf, it becomes a part of the Right of God to enforce the punishment.
The Bill should have opened up all the avenues whereby a hadd punishment could be mitigated or omitted. One such avenue would have been to make a provision that the magduf should formally request the enforcement of the hadd punishment. The Bill has not made any such provision.
4. Highway Robbery (Hirabah)
And lastly, the Qur’an prescribes a three-fold punishment for highway robbery which consists of crucifixion, cutting of limbs and banishment, depending on whether the robber has both killed and robbed his victim or committed only one and not the other of these crimes, or that he only terrorised the people without inflicting any loss of life and property on them. Having spelled out these eventualities, the text provides that the stated punishment shall apply to the criminals “… except for those who repent before they fell into your power. In that case, know that God is Forgiving, Most Merciful” (al-Ma’idah, 5:33).
The ulema of the leading schools of law are in agreement that repentance prior to arrest in hirabah absolves the offender from punishment in so far as it relates to the Right of God content of that crime, and also in similar other offences that involve violation of community’s rights, such as zina and shurb, but not if the offence consists of the violation only, or predominantly, of the Right of Man, such as slanderous accusation, or qadhf. The highway robber who repents prior to arrest is consequently exempted from the hadd punishment but he must return the private property he might have taken.
Repentance prior to subjugation and overpowering in armed robbery is considered to be indicative of sincerity and reform, but repentance after subjugation is likely to be due to fear, which is why it is not admissible. But it should be noted that this is a peculiarity of hirabah and imposing the same limitation by way of analogy, as many have attempted, on repentance in other hudud offences is not necessarily justified.
The Hudud Bill defines hirabah as “an act of taking another person’s property by force or threat of the use of force done by a person or a group of persons armed with weapon or any other instrument of being used as weapon” (Clause 8). The punishment of hirabah is prescribed as follows:
(a) death and thereafter crucified, if the victim is killed and his or other person’s property is taken away;
(b) death only, if the victim is killed without any property being taken away;
(c) amputation of right hand and left foot, if only the property is taken away without killing the victim or injuring him …
(d) imprisonment for such term as in the opinion of the court would lead the offender to repentance, if only threats are uttered without any property being taken away or bodily injury caused (Clause 9).
The Bill is totally silent on the question of repentance at any stage of the proceedings, before arrest and prosecution or afterwards. The Qur’an clearly permits repentance prior to prosecution and arrest and the Bill should have made a provision and found a suitable role for repentance, surrender and remorse in the proceedings concerning hirabah, especially in cases where the victim of hirabah is not pressing for prosecution either.
Our perusal of the textual evidence shows that the Qur’anic emphasis on repentance is explicit and self-evident in every case of hudud; so much so that references to repentance in all the five instances we have reviewed immediately follow the respective provisions on punishment. The question may now be asked again as to what has happened to all of this whether juristic doctrine on the hudud in the various schools of Islamic law has in any way reflected the Qur’anic provisions or repentance?
My general response to this question, which is based on my review of the fiqh expositions on the subject, is that juristic doctrine in the leading madhahib has fallen short of adequately responding to the repeated Qur’anic references on repentance. Any new legislation on the hudud that seeks to implement these punishments would therefore need to take a fresh look at the Qur’an and formulate an ijtihad — oriented approach to the hudud, even at the expense of departing form the scholastic positions of fiqh, so as to make repentance an integral part of the hudud laws. This would mean introducing a degree of versatility into the hudud that has failed to find expression in the works of the fuqaha’.
Having said this, I now present a brief review of the juristic doctrine of the madhahib on repentance and the effect, if any, it might have on the implementation of the hudud.
Juristic Positions on Repentance
The jurists have held three different views which may be summarised as follows: 198
(1) Some jurists of the Shafi`i and Hanbali schools are of the view that repentance suspends the prescribed punishment if it is offered prior to the completion of the offence, provided also that the offence in question belongs to the Right of God (hag Allah) category of hudud. All of the hudud are deemed to fall under this category, with one exception, namely, the hadd of slanderous accusation, which is held to consist predominantly of the Right of Man (haq al-Adami).
This view is based on an analogy that is drawn between armed robbery (hirabah) and the rest of the hudud. Since the Qur’an clearly stipulates that repentance in hirabah is admissible prior to the completion of the offence, this ruling is analogically extended to the rest of the hudud. The Right of Man component of the hadd, such as that over the stolen property in the cases of theft and hirabah, is not affected by repentance and the thief, or the armed robber, even after a valid repentance is required to return the property to its owner, provided that he has repented prior to the completion of the offence.
This last stipulation, which confines the scope of repentance to inchoate crimes, virtually marginalises repentance to an extent that it can no longer be said to be reflective of the Qur’anic provisions concerning it. If this is the effect, as it undoubtedly is, of the analogy to the Qur’anic provision on hirabah, then that analogy may be said to be qiyas ma’ al fariq, or analogy with a discrepancy, which is invalid. If analogy to a ruling of the Qur’an in the original case (al) has the effect of violating the spirit and logic of the Qur’an in the new case (far`), then the analogy is no more than a name, a specious analogy, in fact, that should be discarded.
(2) The Imams Malik and Abu Hanifah as well as some Shafi`i and Hanbali jurists have held that repentance has no bearing on the hudud, except for hirabah, which is based on the clear text of the Qur’an. This view is once again based on a somewhat plausible argument that the wording of the Qur’anic Ayat on the punishment of adultery and theft are general (`amm) and must therefore apply to repenters and non-repenters alike. It is further added that the Qur’anic references to repentance in conjunction with adultery and theft are concerned with repentance after the imposition of punishment and not before.
Although repentance, it is said, is likely to be of spiritual benefit to the offender in this world or the next, it does not, however relieve him of punishment. To open the door of repentance, it is further added, might lead to uncertainty and abeyance in the enforcement of hudud. The proponents of this view have referred to the cases of Md’iz b. Malik and al-Ghamidiyyah, who were punished, during the Prophet’s time, by stoning for zina. There were also cases of other hadd offences where punishment was based on confession but it was still implemented, despite the likelihood that confession is indicative of repentance and remorse. This may be so, but the juristic discussion in this part is based on inference rather than on explicit discussion of repentance in those incidents.
Besides, the circumstances of each case and the surrounding milieu of society at a given time tend to give individual cases a different context, which need not necessarily operate as a limiting factor on the general language of the Qur’an concerning repentance. It is significant perhaps to refer in this connection to Mustafa al-Zarga’s observation when he said concerning the hadd of zina and the application thereof, especially of rajm, by the order of the Prophet. Zarga observed that there is a distinct possibility that the Prophet did so in view of “the circumstances that only a strong and decisive stand on this issue could curb the rampant immorality and corruption of the time of ignorance.” 199
There is also an additional point of information to the effect that both Ma’iz and Ghamidiyyah virtually demanded that they should be punished. It thus appears less than warranted to sideline a feature of the Qur’anic law on hudud on the basis of what might represent a circumstantial development. To draw from these circumstances the conclusion that the Qur’anic provisions on repentance only referred to repentance after conviction and punishment is to rob it of all legal significance, which is simply unwarranted. Abu Zahrah has also made the observation that he has investigated the issue and save for hirabah, he found no authority to confine the admissibility of repentance to a particular time frame whether before or after the matter is brought to the attention of the court.
The other point that is highlighted by the proponents of this view refers to the general nature of the Qur’anic text on these punishments, which is also less than convincing, for the text itself specifies, by way of takhsis, the position of sincere repenters in each case, not in a different place, but in the same passage, almost immediately after the punishment is proclaimed in each passage. It is once again rather a weak point which turns a blind eye to a portion of the text and does not merit much attention.
(3) The third view which is mainly attributed to Ibn Taymiyyah and his disciple Ibn Qayyim al-Jawziyyah maintains that punishment itself, like repentance, purifies the person from moral turpitude and sin. Punishment should be suspended upon repentance in the Right of God type of offences provided that the perpetrator does not demand punishment himself. But if he so insists then he or she may be punished even after repentance. This view concurs with the preceding two views in maintaining that repentance does not have the same effect on the Right of Man component of crimes. For in offences of this kind, it is not repentance but pardon, granted by the victim, that deters punishment.
Our review of the fiqh literature reveals that only in the case of apostasy (irtidad) can it be said that repentance has found a place in the juristic doctrine of the madhahib, but only just so, because imposing a time limit of three days (cf. clause 23(3) of the Hudud Bill of Kelantan) within which the offender must repent — is really reducing repentance to a mechanical formality that is almost meaningless. There is evidently no other place, in the conventional formulations of the hudud, where repentance can play a meaningful role. Repentance prior to the completion of offence is obviously meaningful in hirabah which involves defiance of the ruling authorities but tends to become no more than utopia when it is applied to other hudud crimes.
It seems that the Qur’anic emphasis on repentance caught the attention of Ibn Hazm al-Zahiri who wrote the following, apparently on a distinctly different note:
Since repentance is ordained by God and it is highly recommended, it is obligatory on all Muslims (kana fardan ‘ala kulli Muslim) to invoke it in accordance with the injunctions (al-nusus) that were discussed. Hence inviting the offender to repent prior to the enforcement of hadd is an obligation, and diligence in it is a duty.200
The hesitation on the part of some leading ulema on the effects of repentance is recorded by Muhammad al-Ghazali, in a context where he discusses the permissibility for a mujtahid to overrule his earlier opinion. Al-Ghazali thus wrote that he happened to read Ibn Taymiyyah’s book, Al-Siyasah al-Shar’iyyah, in which the author said that the hudud were mandatory and they were not to be suspended by repentance. The same author, that is, Ibn Taymiyyah, then wrote in his Fatawa that sincere repentance does suspend the hudud. On a similar note, Imam al-Shafi`i held, in his old madhhab, that hadd is suspended by repentance but after his migration to Egypt, the Imam held the contrary view that repentance has no effect on the hudud.201
If one were to reformulate the hudud laws in line with the Qur’anic guidelines on reformation and repentance, one would need to depart from the notion of fixed and mandatory provisions on hudud. It may be possible to combine the Qur’anic directives on repentance with the prescribed fixed penalties as the upper limit, which is what hadd really means, but it would be difficult to integrate into this approach the notion of both fixed and mandatory sentences. For that effectively closes the door to the idea of reformation and of meaningful repentance. Reformation and repentance necessarily involve a measure of discretion on the part of judicial authorities, which may well combine punitive measures of some kind with rehabilitation. The law should, moreover retain the Qur’anic punishment as the upper limit for aggravated cases, hardened criminals and recidivists.
Adequate provisions need also to be made for compensation of loss and damage to private property, or the return thereof in rem, whenever possible, but this need not necessarily follow the conventional division between the Right of God and Right of Man, which is a fighi development in any case, and tends to lead to further complications. For considerations of brevity, I suffice by saying that I have elsewhere elaborated on the Right of God and Right of Man aspect of the hudud as well as on the basic philosophy of hudud in my Punishment in Islamic Law which is where the reader can find additional detail.
Mohammad Hashim Kamali‘s essay ‘The Hudud Bill Debate’ above is reproduced from Islamic Law in Malaysia Issues and Developments (Kuala Lumpur: Ilmiah Publishers, 2000)
174 Actual plans for the introduction of this Bill were announced by the State government earlier in 1991 and the debate over it also started as of that time.
175 Cf. Rose Ismail ed. Hudud in Malaysia, The Issues at Stake, pp. 51-52.
176 Razaleigh Hamzah, Opening Speech to the Semangat 46 Seminar of October 17, 1993, in Rose Ismail, ed., Hudud in Malaysia, p.57.
177 Quoted in M.H. Kamali, Punishment in Islamic Law, p.8.
178 Id., p.8.
179 Razaleigh Hamzah’s speech quoted in Rose Ismail, ed., Hudud in Malaysia, p.59.
180 Id., p.58.
181 Dr. Mahathir’s Speech “We Will Not Allow PAS to Commit Cruel Acts”, New Straits Times, 10 September 1994, pp. 1-2.
182 Anwar Ibrahim, The Asian Renaissance, p. 114.
183 Id. p.119.
184 For further details see Kamali, Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan.
185 For details on this see Kamali, “Siyasah Shar`iyyah or the policies of Islamic Government,” as listed in the bibliography.
186 Ibn Hazm, al-Muhalla, Beirut edn. Edited by al-Bandari, Vol. XII, p.62.
187 El-Awa, Punishment in Islamic Law, p.6.
188 This present analysis basically summarises the argument I have advanced in my book, Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan, Kuala Lumpur, 1995.
189 Cf. Abu Zahrah, al-`Uqubah, p.134-136.
191 Rashid Rida, Tafsir, al-Manar, Vol.V, p.25.
192 Abu Zahrah, al-‘Uqubah, pp. 101-102.
193 Abu Yusuf, Kitab al-Kharaj, p.164; al-Tirmidhi, Sunan al-Tirmidhi, hadith 1447; Tabrizi, Mishkat, hadith 3570.
194 Id., p.165.
195 Cf. Abu Zahrah, a1-`Uqubah, p. 98 ff.
196 Sahih al-Bukhari, trans. Muhsin Khan, Vol. VII, hadith 804; Abu Zahrah, al-`Uqubah, p. 98 ff.
197 Cf al-Zayla`i, Nasb al-Raya, Vol. III, p.330.
198 My exposition of these views is based on Ibn Qudaniah, al-Mughni, Vol.5, p.316 ff; al-Kasani, Bada’i ` al-Sana’i `, Vol. VII, p.96; al-Ramli, Nihayat al-Muhtaj, Vol.VII, p.8; `Awdah, al-Tishri al Jina’i, Vol. I, p.357, and Abu Zahrah, al-`Uqubah, p. 247 ff.
199 Quoted in `Ali Mansur on the basis of Zarga’s letter to `Ali Mansur, the then president of the constitutional court of Egypt and chairman of the Committee on Harmonization of Shari’a and law in Mansur’s book, Nizam al-Tajrim, pp. 182-183.
200 Ibn Hazrn, al-Muhalla, Vol. XII, p.36.
201 Muhammad al-Ghazali, Turathuna al-Fikri, pp.153-154.