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Hudud in Terengganu
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Hudud in Terengganu

Sisters In Islam (SIS) deeply regrets the Terengganu state Government's decision to gazette the Syariah Criminal Law (Hudud and Qisas) Enactment 2003 yesterday despite the fact that it is unconstitutional and contravenes the principle of justice emphasised by Islam.

SIS urges the Federal Government to take the case to court to clarify the jurisdiction of the federal and state legislatures in the area of criminal law as applied to Muslims. The Federal Government must ultimately be responsible to preserve, protect and defend the Federal Constitution which sets the foundation upon which government, state and society is organised.

Now that the Enactment is "enforceable" in Terengganu, does this mean that every Muslim charged who is accused of offences such as theft, robbery, apostasy or illicit sex will be prosecuted under hudud law? Will the Penal Code be suspended in Terengganu? Who will initiate action to enforce the laws? What training have the police, judges, criminal lawyers or prosecutors in Terengganu undergone to carry out the hudud law?

Who will be responsible for amputating the hands and feet of or stoning to death those who are found guilty? If a medical doctor is involved, what is the position of the Malaysian Medical Association on its members who are involved in the execution of these forms of punishment? Can the thief take his amputated limb to a plastic surgeon outside Terengganu for reattachment?

SIS remains opposed to the Terengganu Hudud Enactment for these reasons:
1. It discriminates against women.
2. It discriminates against non-Muslims.
3. It opts for the most unforgiving and most severe opinion to be codified into law.
4. It fails to look at the nass (text) for the hudud punishment as a whole, focusing only on fixed penalties, instead of repentance, reform and forgiveness.
5. It adds two other crimes - apostasy and shurb (consumption of alcohol) - under hudud even though the punishments are not in the Quran.
6. It is unconstitutional.
7. It infringes international human rights standards by providing forms of punishment which can be regarded as "torture, or cruel, inhuman or degrading treatment".

SIS acknowledges that the Quran has prescribed punishment for four crimes - amputation for theft and robbery, and whipping for adultery and slanderous accusation. However, to apply hudud in isolation, and within the context of a modern multi-religious society, raises serious questions whether the ideal of justice - the overriding purpose of the law - might be sacrificed for the sake of conformity to specific rules.

The concept of hudud provides for a comprehensive set of guidelines on moral, legal and religious themes. However, juristic thought has reduced this broad comprehensive concept to mean quantified, mandatory and invariable punishment. Provisions for repentance and reform in the Quran for the four crimes mentioned above have been totally left out or reduced to a mechanical formality.

There is a legal maxim in fiqh: Suspend the hudud in doubtful situations, which is based on a hadith: "Avert the hudud from being inflicted as much as you can, and whenever you find a way for a release (of a defendant) go through it, since it is better for one who rules to make a mistake in acquitting, than to make it in punishment". Scholars have argued that the general language of the hadith is not specified to the evidential process alone. The cautionary advice of the hadith could therefore be applied to reduce the hudud to ta'zir law where the legislature and the judiciary could decide on the most appropriate forms of punishment, reform and deterrence.

The goal of Islamic authorities is to prevent crime in the first place, not to inflict punishment. 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 for abiding by them are prerequisites before the hudud punishment can be implemented.

To insist on the hudud as an isolated case without providing the necessary context and environment is not likely to engender the desired results and may even prove oppressive and unjust. The record of enforcement in countries such as Pakistan and Nigeria have brought Islam and hudud law into disrepute. The current implementation of hudud laws has shown itself to be an extreme criminal violation of the rights, biology and victim status of women.

Shariah is based and constructed on the principle of maslahah (what secures the best interest of the people). Islamic law must establish justice. Anything that turns justice into injustice, mercy to cruelty, benefit to harm, and wisdom to foolishness and meaninglessness becomes mafsadah (harmful) and cannot be said to be Islamic.

Sisters in Islam

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