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| | SIS response to “Hudud is a matter of choice for Muslims” (13 October 2011)
SIS response to “Hudud is a matter of choice for Muslims”
In response to Dr Siti Mariah Mahmud’s letter (9 Oct), Sisters in Islam would like to assert the following points:
1. Dr Siti Mariah states that the proponents of Hudud law must present their case in detail first, before it can be opposed. The truth is, the Kelantan Hudud
Enactment was adopted 18 years ago, and the Terengganu Enactment has been in existence for over nine years. This means that PAS’ position on crime and punishment under Hudud with all its chilling details have been around for some time now for a full and complete scrutiny and evaluation. We are therefore curious as to why this has been pulled out of the closet at this point in time.
2. In fact, the PAS position on Hudud has worsened. The drafters of the Terengganu bill did not see it fit to take into consideration the concerns and objections raised in 1993. Instead, they added yet another discriminatory position – to inflict women with 80 lashes if they reported rape and were unable to prove it. (see http://www.sistersinislam.org.my/news.php?item.907.10)
3. SIS maintains its opposition to the enforcement of Hudud laws in Malaysia on the same grounds it made in 1993 and in 2002 based on the man-made
Hudud laws of Kelantan and Terengganu:
• They discriminate against women.
• They disqualify three quarters of Malaysia’s population as witnesses – all Muslim women and all people of other faiths.
• They select the most unforgiving and most severe juristic opinion (fiqh) to be codified into law.
• They fail to look at the nass (text) in the Qur’an for the hudud punishment as a whole, focusing only on fixed penalties. No mention is made of repentance, reform and forgiveness provided for in the Qur’anic verses on the four hudud offences of theft, robbery, illicit sex and slanderous accusation.
• They add two other crimes - apostasy and shurb (consumption of alcohol) even though the punishments are not prescribed in the Qur’an.
• They are unconstitutional.
• They infringe international human rights standards and Malaysia’s treaty obligations by providing forms of punishment which can be regarded as "torture, or cruel, inhuman or degrading treatment".
For details of arguments, please refer to several SIS statements on the PAS Hudud enactments and the confusion between rape and zina at the SIS website (www.sistersinislam.org.my) and to Prof Muhammad Hashim Kamali’s book "Punishment in Islamic law: An Enquiry into the Hudud Bill of Kelantan", Ilmiah Publisher 2000, and his article published in the Arab Law Quarterly, Vol 13:3 (1998), pp 203-234.
4. For illustration, let us point out just two gross misogynistic readings of the Qur’anic text:
“And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations ) – flog them with eighty stripes and reject their evidence ever after.” (Surah An-Nur 24:4)
This is a Qur’anic message meant to protect women from slanderous accusations of zina.
But in the hands of men, this verse was distorted into Section 46 (2) of the Kelantan Enactment which states: “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”;
and Section 9 of the Terengganu bill which stated that a woman who alleged rape could be guilty of making a false accusation (qazaf) and be whipped 80 times if she could not prove otherwise.
Following an outcry over this, PAS then amended their allegedly “divine Hudud” law to allow a rape victim to bring qarinah (circumstantial evidence) in lieu of four male witnesses to the rape. Even then the burden of proof remains on the woman, not on the law enforcement authorities to investigate and make the case against the alleged rapist. Why should Muslim women suffer this gross injustice?
5. The very fact that glaring contradictions have been exposed between several of these man-made provisions with the actual letter and spirit of the divine text also raise serious doubts as to the propriety of the other provisions in the Kelantan and Terengganu Hudud laws. For example, the general rule is that circumstantial evidence (qarinah) is not a valid method of proving a hudud offence. The offence must be proved through eyewitness testimony or confession only. Thus the majority of fiqh schools hold that pregnancy is not admissible as proof of zina because it is circumstantial evidence. Moreover, it contradicts the clear Qur’anic demand for testimonial evidence of four eyewitnesses in cases of zina. And yet PAS chose a minority opinion of the Maliki school of law, which is harsher, to enact into law.
6. The record of enforcement in countries such as Pakistan and Nigeria have brought Islam and Hudud law into disrepute. Those tried were mostly women and the poor. In the end public outcries of injustice and repeated calls for repeal forced the Pakistani government to weaken its Hudood Ordinance through the Protection of Women Act in 2006. Research done by the National Commission on Women in Pakistan showed that 80 per cent of the women in prison were there for offences under zina. Another earlier research showed that over 1,000 women were in prison for zina, compared to only two men. So the question arose: where were the men with whom these women were allegedly indulging in illicit sex with? Most of the women in jail were in fact there because their husbands had accused them of adultery. The vast majority were found guilty by the lower courts but were acquitted on appeal to the Federal Syariah Courts. Yes, in the end justice prevailed, but by then, these women, denied bail under the Hudood Ordinance, had spent years in jail pending trial. Their lives and reputation were destroyed, and they were ostracised by family and society.
7. The record of enforcement of the Muslim Family laws and the Syariah Criminal Offences laws in Malaysia with the public record of gender bias, selective prosecution and abuse leave us with little confidence that justice can be indeed be done with further expansion of the Syariah jurisdiction in this country, especially with regards to women and those most disempowered.
8. Questioning whether the Hudud laws as codified by the men of PAS in Kelantan and Terengganu will bring about justice and equality in society is not equivalent to questioning the word of God in the Qur’an. Sisters in Islam acknowledges that the Qur’an has prescribed punishment for the crimes of theft (sariqah), robbery (hirabah), adultery (zina) and slanderous accusation (qazaf). The question is whether the man-made Hudud laws with all their flaws in substance, procedure and record of enforcement do really reflect the word and intent of God and will serve the objectives (maqasid) of syariah and the public interest (maslahah). Or will they in fact bring harm (mafsadah) to the individual and to society at large?
Dr Siti Mariah claims that it is the right of every Muslim to decide if they wish these laws to be implemented on them. We absolutely agree that every citizen has the freedom to wish and to believe. But they do not have the freedom to impose their beliefs on others through the use of the coercive powers of the state. PAS and its leaders must acknowledge that there is a huge public divide, even among scholars of Islam, on the application of Hudud in this modern age. There are those who believe in the immediate enforcement of Hudud, as many PAS members and supporters do. Others believe it is dependent on the pre-existence of a just society so that any violations will constitute such an affront that merits such severe punishment. And they say, in fact, this just society where everyone is provided for in a fair and equitable manner is impossible to achieve, thus making Hudud “almost never applicable.” Yet others still believe that the Hudud punishments provided for in the Qur’an were specific and contextual and no longer applicable in contemporary society. What is more important is to focus on Islam’s universal message of equality and justice. The record of Hudud laws in substance and practice in contemporary society has not achieved these Syariah objectives. It has in fact generated fear and revulsion towards Islam and feeds into Islamophobia.
Wouldn’t we as Muslims engender more love for Islam and its practices if we concentrate our time, energy and resources in finding ways to end poverty and all forms of corruption, ensuring social justice for all citizens and establishing a rule of law that is just and fair?
Wouldn’t we bring people to the faith by being compassionate, kind and respectful of others who differ from us? If we are serious about wanting Islam to be a source of law and public policy, how does being intolerant, cruel, biased and belligerent engender faith in the justice of Islam?
Stop this obsession with being right in our doctrine. Can we all please concentrate on being just in our practice?
Sisters in Islam
13 October 2011