ni, if korang nak buat rujukan pun boleh..
dibenarkan ..
tapi jgn tiru sebijik2 sudahlah...
if nak cedok ilmu dari sini dipersilakan.....
ini hanyalah sbgai kajian semata2 dan harap ianya tidak menyentuh sensitivity mana2 pihak....
ingat lagi, waktu nak siapkan ni..suffer skit.....
lot of sacrifices................. tapi berbaloi..
sekurang2nye aku tahu serba sikit tentang hudud law ni......
sekarang ni nak kongsikan plak dengan korang sumer.......
Should Hudud Law be implemented in Malaysia?
Nor Aidillah Binti Harun.
0710878
International Islamic University Malaysia
Abstract
This research paper is mainly about the Islamic Criminal Law known as Hudud law. The topic has been narrowed down on the implementation of Hudud laws, which will be focused on Malaysia at present time. Implementation of Hudud laws in Malaysia , has become one of the interesting burning issue where become a center of much debates all time but still have not yet reach the conclusion. More questions are often raised than answers received in a public forum on this issue. Basically, this paper will discuss on the reasons why Hudud law should be implementing in Malaysia at the present time. So, at the end of this paper, hopefully it will give the readers the ideas on this topic.
1.0 INTRODUCTION.
Shariah (Islamic) Criminal law encompasses of ‘Hudud’, ‘Qisas’ (retaliation)and ‘Ta’azir’ offences as well as their punishments.However, the most controversial from these three is hudud law. Abdur Rahman I.Doi(1992) in giving the definition of Hudud, according to him “The word ‘Hudud’ is the plural of an Arabic word ‘Hadd’ which means prevention, restraint or prohibition and for this reason, it is a restrictive and preventive ordinance or statute, of Allah concerning things lawful (Halal) and things unlawful (Haram)”. (p.221).
Punishments concerning hudud are the matter of fixed punishment because it has been fixed by Quran and Sunnah. It brings mean that hudud cannot be increased, decreased, or altered by anyone even the head of the state. If the accused found guilty, he has no right to appeal or to reduce the punishment. It is seems harsh as it involved the right of Allah for a crime. There are seven crimes of hudud in Islamic Criminal Law. There are zina(adultery), Qazf(false accusation), sariqah(theft), harabah(robbery and dacoity), dringking intoxicating liquor, rebellion and apostacy.
The title has been specified into Hudud implementation in Malaysia. The issue of Implementation of Hudud Law in Malaysia is not new. This issue has been arised by the Islamic opposition party in 1997; however, their proposal to implement hudud law in Malaysia became controversial due to different views given by the society as well as the politician. Lately, Malaysian were shocked when a woman, Kartika Sari Dewi Sukarno, was sentenced by the Pahang shariah court to six lashes of the rotan for drinking alcohol was raised many opinions and views. Among the views is concerning hudud law, they said that it’s very harsh as we not implement hudud law. The question then arise, What if the hudud law really implemented in our country?
Many people are becoming aware on the matters concerning of Islamic Jurisprudence. Problems relating to judiciary nowadays not restricted only for the lawyers or judges to discuss but layman had already opened their eyes and start talking about this academically. Every person had their own views but sometimes their views are not based on a relevant ground. Many people have negative thinking when arriving into Hudud issue. This punishment is the one that seems to them do not fit the laws of certain countries and maybe could not be implemented at all. Moreover, our country consist of multi-racial that seems possible to implement this law. Even though there is arguments that hudud law should not be implemented in Malaysia as there are many controversial issues of its implementation, but still hudud law should not be rejected on the whole without giving any consideration. Do we really understand the meaning behind its enforcement or we just talk about it according to our thought or mind set? I strongly believe that hudud law should be implemented in Malaysia because it is relevant and effective law in combating crimes, it is applicable to all, and it is not contravenes multiple norms and values of international human right law.
2.0 ARGUMENTATIONS
2.1 Argument 1: Hudud is relevant and effective law in combating crimes.
Hudud’s nature is to deter. A prominent writer, Captain Hafiz Firdaus Abdullah states that the main objective of hudud is not to punish, but to deter man from committing crime. hudud is daunting and intimidating, so that man will be frightened of the crime and will stay away from it (www.ahlalhadeeth.net). This is mentioned by Allah when Allah said that “these are the limits (Hudud) set by ALLAH, so near them not”.(surah Al-Baqarah: 187)
The biggest difference between hudud punishment and other punishment is that hudud punishment is physical, like flogging, whipping, cutting the hand, exile and other physicals punishment. Logically and in reality, these physical punishments really give a big impact and influence on the criminal rather than prison, fine or other conventional punishments. It will deter people from committing crime thus the rate of crime will fall. Moreover, conventional judicial system used nowadays that is considered modern and updated, is actually plagiarized from Islamic system. Imagine when man 1400 years ago lived in ignorant times and dark ages, Islam has put down the basis for the punishment of a crime. So that, hudud is still relevant law and is applicable all the time even in this so called modern life.
According to Prof.Hashim Kamali in his book (1995) “fixed punishments are likewise known as Hudud because they are meant to prevent crime, and signify the limit of what is tolerable and what is not”. Deterrence is the basic philosophy of hudud in order to prevent harm to the people, to prevent corruption and protect the essential legal interests. Some writers like Al-Mawardi (1973)makes a point of it in his definition of hudud as “deterrent punishments which God has enacted in order to prevent man from committing what He forbade and from neglecting what He commanded.(p.221)
As a matter of fact, if hudud was implemented properly, and with the correct guidelines, it could prove to be very effective and relevant law in combating the rising number of criminal offenses. For examples, a conference in Riyadh, Saudi Arabian delegate by the name of Dr Dawalibi had confidently said “I have been in this country for seven years… and I have never saw, or heard of any amputation of the hand for stealing.” Another delegate was also reported to have said, “In this manner, in the kingdom of Saudi Arabia, where Islamic Law is enforced, state money is transferred from one town to another, from one bank to another, in ordinary car, without any escort or protection, but the car driver”. This is because the crime extremely rare.
Severe punishment does seem to be a good deterrent for criminal offences which has made possible for all to live in perfect security and tranquility. People would think twice before committing any sinful acts. As state earlier, it is proven that the main objective in hudud is not to punish, but to restrain and deter man from committing crime and offence. Thus, the implementation of hudud is relevant and effective law in combating crimes in Malaysia.
2.2 Argument 2: Hudud law is applicable to all
The Islamic law is a public law and is equally applicable to all the inhabitants of an Islamic states including non muslim. It guaranteed the fairness to muslim and non muslim in Malaysia. In Malaysia, we live in a multi racial as well as multireligious country. Malaysian population consist of various races which are islam 60%, Chinese 19%, Christianity 9%, indian6%, and others 6% (Wikipedia). Each race has its own principle and religion, but it is not mean that Islamic law is not applicable to them. Most of us misunderstood the implementation of hudud law and that is why we rejected it from the beginning. Allah made the law not for the Muslim only. It also governed all kinds of people regardless of their religious background. Abdul Qadir ‘Oudah Shaheed(1997)
The applicability is universal which means it is for the entire mankind. It is not territorial, being confined only to a particular part of the globe. It comprehends all the peoples of the world, irrespective of race, and color and of territorial and national limits. It addresses both muslim and non-muslim people living in the Islamic and non Islamic states.(p 320)
We should know that the implementation is based on certain requirements which are according to place, time and individual. The burden of proof also is higher than the civil law which is beyond the shadow of doubt. The law is also applicable to the non-Muslim but somehow the restriction under the law is slightly different in matter pertaining to the religious matter. Prophet Muhammad has given the basic ruling in a Hadith, “Prevent the application of Hadd punishment as you can whenever any doubt persists.”(Bulugh al-Maram, hadith no:1047) Once this ruling was applied, it reduced the number of Hadd punishments in the Muslim countries like Saudi Arabia. When the benefit of doubt is resolved in favor of the accused supposing in the case of theft, a lesser punishment by Ta’zir is given because the doubts relates to the criteria and not the conviction.
Anwarullah(1997) is right when he states “ as a right of ALLAH means that it is meant for the betterment of the society.” (p.112). society here refers to all whether they are muslim or non-muslim. In order to do that, there must be an organization to be responsible to assured that the law been governed properly.
Besides that, there are some countries which already enforced the punishment such as Sudan. Although the populations of the country are not all Muslim, the enforcement still can be done as the Sudanese government had making steps in making the punishment to be implemented. There is no difference between Muslim and non-Muslim. The differences arise only in an offence which is based on the violation of any religious command. In example, when other religions do allow the followers to drink wine, they will not be punished, but they will only be prohibited to drink it publicly before the Muslims.
So, there should no be dispute about the applicability of the law to the non-Muslims because in the end all laws are seeking for justice. The laws that Allah made for us are not meant for the Muslims only and Allah as the sovereign under the law had given the power to the authority in dealing with matters pertaining to judiciary on there should not be any discrimination between the Muslim and the non-Muslims in upheld justice.
2.3 Counter Argument: hudud are harsh and violates international human right.
Some people and activist argued that Hudud law contravences multiple norms and values of international human right. It is argued that the hudud portion of sharia is incompatible with humanist or western understanding of human rights. Shahrul Mizan Ismail (2006) further stated:
The fact that it involves the right of God signifies that it is meant to be mandatory punishment, a demand from God that requires fulfillment and no one, including the victim, judge or the head of state has authority to alter or modify what more to pardon or suspend it. Due to these reasons, Muslim countries are usually of the view that the enforcement of such punishment is a non-negotiable religious obligation. Human rights activists on the other hand, argued that the implementation of the hudud contravenes multiple norms and values of international human rights law. Ever since then, there have been many attempts to stop the aforesaid violations by stopping altogether the implementation of hudud punishments in numerous Muslim countries. (p.1)
The Islamic jurisprudence have been approved that ‘Hudud’ is limited to punishments for crimes which have been stated in the Holy Quran and further elaborated by the Sunnah of the Prophet S.A.W, they cannot be objected to, cannot be increased or decreased as it is Allah’s right. (Abdur Rahman I.Doi, 1992; Yahaya Yunusa Bambale, 2003). The punishments include capital punishment by sword/ crucifixion or by stoning, amputation of hands, and flogging with a number of strokes. They argued that these punishments is harsh and in violation of human rights by advocates of international human rights law. According to Shahrul mizan Ismail (2006) the punishments of hudud violate the norms of international human right as they prohibits the implementation of the torture and any form of cruel, inhuman and degrading punishment regardless of the offence committed and its has been repeatedly declared by Human right writes to be falling within the domain of the said phrase. According to human rights activists in relation to hudud punishments mostly relates to issues, unrelated to the nature and quantum of the punishments. They argued that the punishments were recklessly inflicted upon the accused and many violations of accused rights for example right to defense, right to appeal, right against retroactive criminal law and many more.
According to Rose Ismail(2002) in several muslim countries where hudud was practised, based on comparative research done, widespread injustice especially towards women revealed. More women compared to men have been kept in jail for long period of time pending trial under hudud law based on research done by Women lawyers and human rights groups in Pakistan, sudan, and Iran. Also, they indicated that men are arrested frequently than women on adultery and fornication crimes. Thus for this, they come out with conclusion that Malaysia should not implement hudud law to avoid these abuses, harshness and violation of human rights.
2.4 Refutation: hudud not contravence multiple norms and human rights.
In Islamic law, the theory of punishment is based on the belief in divine revelation contained in the Quran and the sunnah, the harshness of the hudud penalties can never be questioned. The idea that human judgement alone could determine the appropriateness or cruelty of a punishment decreed by God is simply out of the question.it is interesting to quote very relevant argument regarding this international human right law by Shahrul Mizan Ismail (2006) he stated:
The methodologies adopted by many human rights advocates in dealing with the issues of Hudud punishments are typically shadowed by the following pattern of actions: First, publicly judging the legitimacy of these punishments by the yardstick of international human rights law. Second, excessively emphasizing on the severity of the said punishments, and denouncing them to be in contravention with the universal norms of human rights. Third, demanding obedience from states practicing Hudud by abolishing the punishments or repealing the laws which prescribe them, usually on the basis of the states’ ratification of the international treaties which prohibit the implementation of the said punishments or customary international law. (pp.3-4).
According to Yahaya Yunus Bambale(2003)the severity of punishment in hudud is to achieve the object of punishment that is the real reformation and rehabilitation of the mankind. The function and purposes of punishment also must take into consideration as punishment under Islamic Criminal justice system including Hudud consist of four main theories, that are, the theory of deterrence, the theory of retribution, the theory of reformation and also the theory of compensation. The infliction of punishment should be just and commensurate with the crime committed. for this, justice is only done when the offender appropriately punished.
Thus, from the discussion, it is very obvious that human rights advocates have a very limited prospect of success in pressuring the governments to practice hudud laws by simply relying on the so called universal norms of international human rights law. Muslims believe that although the punishments are harsh and violate the norms of international human rights, the implementation of such punishments is mainly necessary to deter future crimes from occurring.
In order to refute the argument that hudud punishments violates the rights of accused as occurring in countries practicing hudud , in fact these violations are not caused by the original nature and quantum of the punishments but are due to procedural abuses and errors in implementing the said punishment. Hudud guaranteed rights of accused supporting this, Hafiz Firdaus Abdullah(n.d) , Nagaty Sanad (1991) discuss that Islam guarantees justice for the accused likes the right to defense, the right to judicial trial, the right to a just and impartial Trial, guarantees of the accused during interrogation and other rights and guarantees just like any other conventional punishment. The obvious justice is punishment is only sentenced on the accused if there is no doubt. In a hadith it is narrated “Avoid from giving hudud ruling as far as you can avoid it”.(sunan Ibn Majah, Hadith no:2545).
2.5 Islamic Perspective:
Hudud laws are God’s law and this is stated in the Qur’an. Muslims must therefore implement and abide by such laws for the betterment of human kind. This is mentioned by Allah:
“hence judge between the followers of earlier revelation in accordance with what God has bestowed from on high. And do not follow their errant views; and beware of them, lest they tempt thee away from aught that God has bestowed from on high upon thee. And if they turn away (from his commandments) they know that it is but God’s will (thus) to afflict them for some of their sins: for, be hold, a great many people are iniquitous indeed. Do they, perchance, desire (to be ruled by) the law pagan ignorance? But for people who have inner certainty, which could be a better law-giver than God? (Al-maidah: 49-50).
The concept of hudud are not really meant to consist of punishments, nor of purely punitive and mandatory sanctions.It is true when Hashim Kamali(1997) stress that “the basic concern of hudud Allah in the Quran is clearly with the moral limits of conduct in the sense of identifying what is generally good and righteous.” (p.49). the implementation itself is more to apply a set of broad moral and legal guidelines which must be observed and upheld.
3.0 CONCLUSION
In conclusions, it is clear to say that Hudud laws should be implementing in Malaysia at this present time. It is because it is relevant and effective law in combating crimes, it is applicable to all, and it is not contravenes multiple norms and values of international human right law. It has to be noted that, Hudud even though just a small part of Islamic Criminal Law and Islamic jurisprudence, but it must be uphold as much as we can. Although it is hard to accept new changes, we are on duty to enforce the Islamic law. It is true that government is the powerful authority to enforce this hudud law in our country but , the burden is not only to the government, but the muslim as the whole. In my humble point of view, as the religious matter is a matter of the state, there must be an action taken by the states and they should do it hand in hand to make sure the punishment organized in each state. Many objections had been made again this application but we must accept that it is not wrong to implement hudud as long as we adhered to it and accept it as it is. Also, our judiciary body as one of the organs of the enforcement should play their role to enforce this hudud law instead of totally relying on the civil and common law in governing most of our problems. We have independence for 52 years, now it is time to have our own common law and Islamic law specifically and enforce this law.
references
Abdullah Yusuf ‘Ali (2000). The Holy Quran: Text and Translations. Kuala Lumpur:
Islamic Book Trust.
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Abdur Rahman I.Doi (1992). Shari’ah: The Islamic Law. Malaysia: Percetakan Zafar
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Mohd. Hashim Kamali (2000). Islamic Law In Malaysia: Issues and Developments.
Kuala Lumpur: Ilmiah Publisher.
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Anwarullah(1997) :The Criminal Law of Islam. Brunei:Islamic Legal Speacialist,
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Yahaya Yunusa Bambale(2003) :Crimes And Punishment Under Islamic Law : Malthousa Press Limited.
Abdul Qadir ‘Oudah (1997) :Criminal Law of Islam : Malaysia: International Islamic Publisher.
Rose Ismail(2002) Hudud In Malaysia. The Issues At Stake : Malaysia: Ilmiah Publisher.
Shahrul Mizan Ismail. (2006) The Dilemma of Hudud and International Human Rights: Proposing a Benevolent Mechanism Retrieved December 13, 2009, from http://www.commongoodjournal.com/
Hafiz Firdaus Abdullah (n.d) Characteristic of Hudud, The Islamic Criminal Law Retrieved December 26, 2009, from http://www.ahlalhadeeth.net.
~S.E.K.I.AN~
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