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By Othman Talib

Hudud, a misunderstood Islamic law

Islamic Syariah is a method made by Allah SWT to regulate Islamic life in the light of Holy al-Quran and pure Sunnah. Unless it is implemented no society can become an Islamic society.

Is it reasonable that we only take from the Holy Quran ''fasting has been ordained upon you,'' and we don't take from it ''fraudulent deals are haram''?

It is unimaginable that we accept the verses that make prayer compulsory and we reject the verses that make usury unlawful. Islamic legislation is a main component for a society.

Any society must have a law that regulates social relationships and inflicts punishment on the outlaw, be it a heavenly law or a man-made law.

Consciences and psychological motives alone are insufficient to keep a society secure and protect its morale and material entity.

Hudud punishment has also been politicised and sensationalised by some parties advocating the implementation of Islamic Syariah. This punishment is too great to be exploited by a party for their own interests and for their hidden agenda.

Secondly, legislation is not confined in hudud and punishments, as perceived by some people. Legislation in Islam regulates the relationships of a human and his lord, a human and his society, a ruler and the ruled, the rich and the poor, employers and employees and an Islamic state and non-Islamic states in both the states of war and peace.

It is not only a religious law it is also a civil, administrative, constitutional and international law.

What hudud is

Hudud is a fence that declares loudly that Muslims say ''no'' to certain crimes and reject a compromise at all on the matter.

Hudud that has been ordained in Islam is not that terrible as perceived by some people. Western people abhor these punishments for two reasons that were mentioned by Prof. Al-Maududy when talking on the Islamic penalty of adultery in his book ‘Al-Hijab'.

''Western conscience detests this one hundred lashes punishment not because they detest the injuring of human body. The real reason is that their moral sense is still incomplete. While adultery was previously considered in their society as a shame and disgrace it is today to our surprise considered play and amusement.

"They mean that unless this act breaches the freedom of another man or any of his legal rights it can go unpunished and be compromised. Even if this act breaches one's freedom the adultery is still considered in this society as a small crime that is only fined or punished lightly.

''It is intuitive that one whose perception of adultery was like this must view the penalty of one hundred lashes as a cruel punishment for this act. But if his moral and social sense had been exalted and aware that adultery is a social crime that is harmful to the whole society, he would had viewed the punishment differently and admitted that a society must be protected against the threat.

"Since the factors that drive one to commit adultery are deeply rooted in his bestial instinct and cannot be uprooted by just inflicting the penalty of imprisonment and fine, severe measures must be used to exterminate it.

"Protecting millions of people against innumerable moral threats by hurting one to two persons is better than removing injury from criminals and jeopardising people.

"It will be even inherited by the coming generations without their guilt. There is another reason why they consider the hudud as an unjust punishment one may find it out easily if he reflects deeply on the main principles of western civilisation. This is because they put an individual above the society. Individual's rights are looked upon in high esteem.

"If an individual wrongs and assaults a group no matter they will not abhor his act they even usually view it as a therapy -deserving psychological problem. But if a legal action was taken against an individual in protection of the rights of a group it would be hair-raising act.

"Moreover they are naturally more concerned about senses instead of intellect. This is why they abhor an act that injures an individual because it is obvious to the eye. But they fail to comprehend the serious damage that it causes to society and its coming generations, because it is nearly not felt by them as if it is beyond their faculty of mind.

"Islam is unusually strict in proving the crime especially the crime of adultery. It was only proven through confession in the era of the prophet and great Caliphs. Islam also opens the door of repentance.

"Anyone who turns repentant honestly and sincerely the punishment will be dropped according to the strong opinion of scholars. But it doesn't mean that the punishment is totally dropped it may turn to Ta'zir instead. (Ta'zir is discretion-based judgment).

Islam assures that individual's privacy is not violated

Islam is very concerned about individual's privacy and tends to pardon in matters relating to hudud.

In this regard Dr Qardhawi tries to turn attention to an important fact about hudud: Islam doesn't pursue the enforcement of hudud and is not fond of the execution of punishment against those who have committed punishable offences.

Neither device is to be put to snoop offenders nor candid camera be installed to shoot them while committing the offence.

Neither a police officer nor a special branch is empowered to spy those going against the Islamic Syariah to be arrested as suspects. Neither individuals nor authorities are allowed to spy people's privacy. They are even urged to respect their privacy.

Syariah advises accuracy in the application of punishments. In an authoritative Hadith, judges and ruling are advised to be careful in the application of punishments. If they err, it is better they err on the side of leniency.

If the judge can find a way out of a harsher to a lighter punishment, he is advised to do so. Rather than err in punishing someone a judge is advised to forgive incorrectly.

According to al-Hakim as reported by Abdul Rahman bin 'Auf. He and Omar at one night were assigned to guard Medina. While they were walking a lamp in a house was lit. They went heading for the house until they approached it.

To their surprise a door was closed with persons speaking loudly. Do you know whose house is this, said Omar while holding Abdul Rahman's hand.

''No'' said Abdul Rahman.

"This is the house of Rabi'ah bin Umayyah bin Khalaf. They are drinking wine. So what do you say? said Omar.

"I am of the view that we have made what is forbidden by Allah: Allah forbids us by saying ''stop spying '' and we are spying now, said Abdul Rahman. "A ruler will play havoc to people if he pursues suspicion among people."

According to Ibn Kathir, the slave of 'Uqba bin 'Amir the messenger of Allah, said ''one who covered disgrace after he saw it is like someone who brought life to a girl who has been buried alive in her grave."

Islamic directives are also found to urge Muslims frankly to be tolerant in punishments regarding to civilian's rights, such as theft provided that they are not brought to judiciary.

Otherwise the offender cannot be forgiven. Abdullah ibnu Umar was reported to have said: "Be tolerant about the hudud among you. As what was passed on to me I would have to judge. Ibnu Masu'ud said I still remember a man whose hand was the first to be severed by the Messenger of Allah.

The Prophet ordered to cut off his hand when he was brought to him, but the Prophet seemed to have been regretful. His companions therefore said to him "Oh! The Messenger of Allah you seem if you have done that against your will?"

"What could I do?" the Prophet said. "A leader has no choice but to execute a punishment if a case is referred to him," the Prophet added.

Allah is a pardoner who likes to forgive: let them pardon and be tolerant, don't they want Allah to forgive them and Allah is a compassionate forgiver.

A man was confessing before the Prophet that he had committed a punishable offence but the Prophet didn't ask him about what kind of the offence or how did he commit it.

Another Hadith enjoins: Suspend the hudud in all cases of doubt. According to Sheikh Mutawalli Sha'arawi hudud can be likened to nuclear bomb because it is almost impossible for a country to use it as it is internationally banned.

But countries having the nuclear bomb can preserve balance of power in their region for fear of the possibility of it being used when emergency arises.

Hudud likewise, it is almost impossible for us to have four faithful eyewitnesses to prove the acts of hudud. But the presence of this law can keep a society balanced and stable.

But it doesn't mean that those committing adultery will go unpublished if we fail to bring forth four faithful witnesses, because in this case the offender will be referred to takzir or discretion-based judgment, where civil lawyers can play their role in deciding on the case.

But hudud in this case should be dropped in view of the unavailability of the above-mentioned conditions.

 


OTHMAN TALIB is a former lecturer at faculty of Islamic studies UKM.