11 JUNE 2002
The decision of PAS government to proceed with the tabling of ‘Undang-Undang Jenayah Syariah (Hudud dan Qisas) Terengganu’ is worrying. The implementation of hudud is only possible if all prerequisite of hudud that guarantees justice is already in place and functioning at its best ability.
Sisters In Islam acknowledges that the Quran has prescribed punishment for the crimes of theft (sariqah), robbery (hirabah), adultery (zina) and slanderous accusation (qazaf). While human judgement cannot abolish the offences as stated in the Quran, human judgement can decide whether all infrastructures, the condition of society and authority is ready to enforce a just hudud law.
Hudud cannot be implemented in Malaysia as yet for various reasons. Among those reasons are:
1. Concept of Hudud – Hudud Allah in the Quran is a much broader concept which is neither confined to punishments nor to a legal framework, but provides a comprehensive set of guidelines on moral, legal and religious themes. The Quran uses hudud in relation to fasting, family laws, inheritance, in addition to using the word in its general and wider meaning which embodies all God’s teachings and laws.
The ‘Undang-Undang Jenayah Syariah (Hudud dan Qisas) Terengganu’ had reduced this broad comprehensive concept to mean quantified, mandatory and invariable punishment. Not only that the Quranic prescription for four offences has been expanded to six in fiqh formulations, it had been further increased to seven by the Terengganu government.
2. The goal of Islamic authorities in introducing hudud is to prevent crime and not to inflict punishments. Promoting and protecting the human rights of the ummah, ensuring socio-economic justice, educating the ummah about God’s teachings and laws in order that they become responsible and law abiding, are prerequisites before the hudud punishments can be implemented.
The Terengganu Menteri Besar had stated that it was his role to put in place the foundation required for the implementation of hudud law. The foundation should not have been the ‘Undang-Undang Jenayah Syariah (Hudud dan Qisas) Terengganu’ as there are many prerequisites and foundation of hudud that has not been put in place or performing at its best abilities. To insist on the hudud without providing the necessary context and environment can be detrimental.
We should learn from countries that had imposed hudud without the prerequisites, such as Nigeria and Pakistan, that have brought Islam and hudud law into disrepute. The implementation of such hudud laws has shown itself to be an extreme criminal violation and discrimination against women.
Muslim women in Malaysia has voiced out complaints about discrimination and unjust implementation of the Islamic Family Law in Malaysia. They face various problems in their dealings with the religious authorities and Mahkamah Syariah. The record of enforcement of the Islamic Family Law in Malaysia leaves women with little confidence that justice can be dispensed, especially with regard to women and as such they do not have the confidence on the ability of any government to implement and enforce a just hudud law.
The Terengganu government’s attitude in ‘do first and we shall see’ is primarily to gain political mileage. Syariah is based and constructed on what is reasonable and secures the best interest of the people (principle of maslahah), not for individual or political interest.
3. Concept of repentance and reform – whereas the Quran has in all 4 instances made provisions for repentance and reform, juristic doctrine has either left this totally out or reduced it to a mechanical form. The Quran states that God is Most Merciful and opens way for the individual’s moral development. The Prophet never urged a defendant to confess but rather opened doors for denial and repentance is preferred to punishment.
The ‘Undang-Undang Jenayah Syariah (Hudud dan Qisas) Terengganu’ and the state government does not provide any mechanism for repentance and reform.
4. Witness – The ‘Undang-Undang Jenayah Syariah (Hudud dan Qisas) Terengganu’ makes it a requirement for any witness to be a Muslim man who is ‘aqil baligh’ (puberty) and ‘adil’ (good character). The Terengganu Menteri Besar had further stated that a witness must be one who does not commit any sin at all times.
We question the availability of such a witness.
The ‘Undang-Undang Jenayah Syariah (Hudud dan Qisas) Terengganu’ further denies the capability of women and non muslim to be a witness. The Quran does not prohibit them from being a witness. There are many views by the Islamic scholars on this and the Terengganu government should not have adopted the most conservative view.
5. Rate of reported criminal cases among muslim will decrease – a decrease in the rate of report does not mean no crime! The implementation of hudud law would have an effect of deterrence in crime reporting. Currently the rate of rape reporting is only 4 reports for every 10 rapes, what more when there is a possibility of a woman who was raped to be convicted of false accusation.
Sisters In Islam not only disagree with discriminatory provisions that can be found in ‘Undang-Undang Jenayah Syariah (Hudud dan Qisas) Terengganu’, we call for suspension of hudud laws until all the necessary infrastructure is in place and functioning efficiently to ensure justice for all.
Sisters In Islam
11 Jun 2002