The links below are relevant to this article;
- http://www2.esyariah.gov.my/esyariah/mal/portalv1/enakmen/ State_Enact_Ori.nsf/f831ccddd195843f48256fc600141e84/ cb36901c419ea86448257385002c3dc8?OpenDocument
- Arabic terms used: Allah, Islam, Quran, Ulama, Hadith,Shariah, Munakahat, Muammalat,Hudud, Qisas, Takzir,Shrub,Qazaf, Zina, Khalwat, Hirabah, Irtidad, Riddah, Hirabah,Jirah,Diyya, saw.
THE MUSLIM CRIMINAL LAW
The Muslim Criminal Law, the Muslim Shariah Law (encompassing Munakahat, Muammalat) and relevant Fatwas are part of the overall Islamic Jurisprudence- the so-called Islamic Law system all based on the Quran and hadiths.
The Muslim Criminal Law consists of three different categories or components namely HUDUD, QISAS and TAKZIR. Hudud is the main pillar in the system.
Hudud law is for specific crimes and is applicable to the few criminals that commit them as follows;
The six specific crimes are shrub (drinking alcohol or any intoxicating drinks-with conditions), qazaf (accusing a person of committing illegal sexual intercourse without providing the relevant four numbers of witnesses – this is for the accuser), zina (committing illegal sexual intercourse or adultery – affecting both couple with conditions), sariqah (stealing-with condition) hirabah (robbery) and irtidad or riddah (apostasy, renouncing the Islamic faith and/or converting to others)
Please note the crimes not under Hudud or Hudud per se: Murder, hurting, doing harm, rape, marital rape, close proximity (khalwat), petty theft, homosexual activities, sodomy, incest, gambling, corruption, lying, cheating, negligence, business, marriage, divorce, inheritance, rioting, hooliganism, drug abuse, carrying dangerous weapons, traffic violations, avoiding taxes, financial scandals (like PKFZ),conspiracy, treachery, miscarriage of justice, intrusion, killing animals, causing pollution and many others do not fall under Hudud. Some of these either fall under Qisas, Takzir, the Muslim Shariah Laws or any other enactments created by the state.
For example, murder is under Qisas. Causing someone to lose a limb is under Qisas, like an eye for an eye.
Another example like, homosexual activities, close proximity and petty theft are under Takzir.
Rape, incest and child abuse shall be discussed specifically later as more subcategories of the Islamic Law are touched.
I am sure all ordinary law-abiding citizens, some 27 millions of us, should not be afraid of such a legislation which basically sets limits ordained by Allah, and deterrent punishments for specific offences, namely, alcohol consumption, accusing another person of illicit sex without prove, illicit sex, theft, robbery, and apostasy.
The apparent worry of so many people, both among Muslims and non-Muslims, just emphasized the point hudud is a very effective deterrence indeed.
That is the idea: it is to deter people from committing these heinous crimes which are sinful.
Deterrence is more effective than punishment. For example, we have the mandatory death penalty for those involved in selling of drugs, but the deterrent effect is not there, thus nobody pay heed to the law and punishment.
The other idea is in truly believing that for Muslims, once their wrong doings have been duly punished in this world, then they will not be punished in the hereafter, which is much more severe.
There are many misunderstanding among the Malaysian population about the Muslim Criminal Law and hudud simply because of ignorance. Many just refused to know and some make fun and mockery of it.
Islamic Law is to maintain the smooth running of society and is more open. Enforcement does not include going into peoples’ homes to check on what they are doing whether they are drinking, gambling or having illicit sex. Thus those who perform illicit sex and not going public about it and admit the wrong doing can’t be tried at all. The crimes should all be openly in the knowledge of the public. Thus if the spillover effect is going public, then the law will only be on the spillover. Those committing sins privately are advised to repent and ask for forgiveness from Allah.
Comparison of Malaysian Criminal Law and the Muslim Criminal Law systems at a glance
In Malaysia, we are not aware of the fact there are more death penalties for crimes committed under the Malaysian Criminal Law than what is permitted under the Islamic system.
The role of judges in the implementation of Islamic Law is totally different than their role in the Malaysian Criminal Law.
In Islamic Law, the judge has to do his best to save the accused, to save him or her from being punished; while the prosecutor must serve the victim. The principle of “it is better to set free a guilty person rather than punish an innocent one” is of paramount importance in implementing the system. Moreover nobody on earth can be fair, only Allah is the ultimate judge.
Whereas in the Malaysian Criminal Law system, the judge is just a passive moderator and has no real power to do anything, and just accept what both parties present in court.
He has no power to insist certain matters be brought forward as evidence if that is not mentioned by the parties. The judge in the Muslim Law system can call for other witnesses and ask for other evidence to bring more light into the case.
The punishments under the Malaysian Criminal Law is set by Parliament and are non-negotiable, while in Islamic, the victim has a role in choosing the agreeable punishment.
In the Malaysian Criminal Law, the government gets all the benefits, but in Islamic Law, the victims get the benefits because they are the ones who suffered and, in some cases, it is a win-win situation for all.
There are many other aspects of Islamic Law that can be highlighted, but not within this limited forum.
Above all, as have been done during the times of Prophet Muhammad (saw) and his companions, most, if not all, of those punished under Hudud could be counted on our fingers.
On top of that, they were all willing and insisted to be punished as such, and not being imposed upon them,
The rights of non-Muslims.
As there are rights for non-Muslims, it is the right of all Muslims to be judged and punished under the Islamic Jurisprudence as this is part of their faith. It is unfair for Muslims to be judged and punished based on the Malaysian laws, since their sins will not be cleared and it will bring more injustice to all those connected to creating and implementing the man-made system, especially the Muslims themselves.
For non-Muslims, they have three choices. They can either accept the Islamic Jurisprudence, their own rules (based on their culture, believes and religion), or the civil law, criminal law or other man-made laws of the state. As the saying goes, there is no compulsion in religion.
This is more than fair for the non-Muslims. They can go shopping around to their advantage. Yes, go ahead, why not, it is okay.
During the time of the Prophet (saw) punishment was inflicted on the rapist on the solitary evidence of the woman who was raped by him. Wa’il ibn Hujr reports of an incident when a woman was raped. Later, when some people came by, she identified and accused the man of raping her. They seized him and brought him to Allah’s messenger, who said to the woman, “Go away, for Allah has forgiven you,” but of the man who had raped her, he said, “Stone him to death.” (Tirmidhi and Abu Dawud)
Many people including Sisters In Islam are afraid of ghosts. S.I.S in particular is against the overall Islamic Jurisprudence simply because of the rape of women which they (S.I.S) say needs four witnesses and this is unfair to the women. Note again that rape is not under Hudud per se.
Again, many are confused between rape and adultery. It is adultery that is under Hudud and it needs four witnesses or voluntary confessions to be punishable. Even Dr. Mahathir is confused in this matter. Dr. Mahathir is also ignorant of the fact that the non-Muslims involved in any crime are also punishable based on the country’s law.
Dr. Mahathir assumed that in the case of zina (adultery) only the Muslim individual is punishable which is not true.The non-Muslim partner is also punishable by the country’s law. If there is no such law in the country, then it is the duty of the law makers to create it, but don’t say Islamic Law is unfair, see… Islam is more advanced that it has such law to deal with such crimes.
The crime of rape is classified not as a subcategory of ‘zina’ (consensual adultery) either, but rather as a separate crime of violence under Hirabah (Hudud robbery rule in a wider concept).This classification is logical, as the “taking” is of the victim’s property (the rape victim’s sexual autonomy) by force. In Islam, sexual autonomy and pleasure is a fundamental right for both women and men (Ghazâlî); taking by force someone’s right to control the sexual activity of one’s body is thus a form of hirabah.
Rape as hirabah is a violent crime that uses sexual intercourse as a weapon. The focus in a hirabah prosecution is the accused rapist and his intent and physical actions, and not second-guessing the consent of the rape victim. Hirabah does not require four witnesses to prove the offense, circumstantial evidence, medical data and expert testimony form the evidence used to prosecute such crimes.
Moreover Islamic legal responses to rape are not limited to a criminal prosecution for hirabah. Islamic jurisprudence also provides an avenue for civil redress for a rape survivor in its law of “jirah” (wounds). Islamic law designates ownership rights to each part of one’s body, and a right to corresponding compensation for any harm done unlawfully to any of those parts. Islamic law calls this the ‘law of jirah’ (wounds). Harm to a sexual organ, therefore, entitles the person harmed to appropriate financial compensation under classical Islamic jirah jurisprudence. Each school of Islamic law has held that where a woman is harmed through sexual intercourse (some include marital intercourse), she is entitled to financial compensation for the harm. Further, where this intercourse was without the consent of the woman, the perpetrator must pay the woman both the basic compensation for the harm, as well as an additional amount based on the ‘diyya’ (financial compensation for murder, akin to a wrongful death payment).
Dr. Mohd. Asri Zainal Abidin said DNA cannot be used in Hudud, yes, in Hudud only because the conditions are already set by Allah. But Allah also creates the DNA. In this controversial rape case categorized as Hirabah the DNA could be used but again, the Ulamas must come out with some sort of Fatwa which I mentioned in the first paragraph as being part of the overall Islamic Jurisprudence.
Islam is as strict and as stringent and yet under certain conditions is most flexible. Take the simple case where everyone knows where in the case of hunger at the brink of death like in Somalia now, the Muslims can eat anything within their grasp enough to survive.
Is there recognition of marital rape in Islam?
The Quran is very clear that the basis of a marital relationship is love and affection between the spouses, not power or control. Rape is unacceptable in such a relationship. Yes, Islam does acknowledge “marital rape”.
In the context of jirah, it would appear so: where there is any physical harm or disease caused to a spouse, there may be a claim for jirah compensation. The law of jirah provides for compensation for physical harm between spouses, and supports Islamic legislation against domestic abuse. Even in these discussions of appropriate jirah compensation, the question of the injured party’s consent plays a central role. Some Islamic jurists considered consent to be presumed by virtue of the marital relationship, while others maintain that where harm occurs, it is an assault, regardless of the consent, and therefore compensation is due. In our modern era, one might take these precedents and their premium focus on consent and apply the Islamic principle of sexual autonomy to conclude that any sex without consent is harmful, as a dishonoring of the unwilling party’s sexual autonomy. Thus, modern Islamic jurists and legislators, taking a gender-egalitarian perspective, might conclude that Islamic law does recognize marital rape, and assign the appropriate injunctions and compensation for this personally devastating harm.” (Qureshi)
An often misquoted and abused hadith that is used to tyrannize women is that women cannot and should not say no to their husband when he approaches them Women are advised not to turn away from their husbands except if they have their period or any other reasonable excuse. So much so that she is to break her voluntary fast if her husband approaches her. And if they do angels will curse them. However, this hadith is not quoted with the complementary one that advises men of the same consideration.
In the same manner men are advised that meeting the needs of their wives takes precedence over voluntary worship. Narrated Abdullah bin Amr bin Al-As: “Prophet Muhammad (saw) said, “O Abdullah! I have been informed that you fast all the day and stand in prayer all night?” I said, ‘Yes, O Allah’s Apostle!’ He said, “Do not do that! Observe the fast sometimes and also leave them at other times, stand up for the prayer at night and also sleep at night. Your body has a right over you and your wife has a right over you.” (Bukhari)
To a certain degree these ahadith are used to confuse and distract from the issue, since rape does not have anything to do with permission or lack of permission. In a marriage abusive or forced sexual activity cannot be justified by abusing this hadith. Rape is defined as unwanted, violent and forced sex, whether this occurs in a marital context or outside it. The definition of rape does not change because of the relationship.
Incest & Child Abuse
The Quran clearly outlines those with whom marriage is not permitted, we can extrapolate from it that any sexual relation with these would be unacceptable.
Surah an Nisa 4:23:
Prohibited for you (in marriage) are your mothers, your daughters, your sisters, the sisters of your fathers, the sisters of your mothers, the daughters of your brother, the daughters of your sister, your nursing mothers, the girls who nursed from the same woman as you, the mothers of your wives, the daughters of your wives with whom you have consummated the marriage – if the marriage has not been consummated, you may marry the daughter. Also prohibited for you are the women who were married to your genetic sons. Also, you shall not be married to two sisters at the same time – but do not break up existing marriages. GOD is Forgiver, Most Merciful.
This includes your foster parents, siblings and children.
Al Hasan reports: ‘If somebody commits illegal intercourse with his sister, his punishment is the same as for any other person who commits such a crime’. (Bukhari Vol. 8 pp 526)
Thus, these same laws mentioned above in cases of rape would be equally applicable, and incest can be prosecuted as a crime within the bounds of Islamic law.
According to Islam, all aspects of life, ie: the physical, mental, emotional and spiritual, are sacred and must be respected. No gender or relationship has been given the power or right to hurt or harm the other. Domestic violence, rape and incest are all violent and criminal abuses that are outside the bounds of what is permitted in Islam and there is absolutely no justification for it whatsoever.
Islamic Criminal Law in Saudi Arabia, Afghanistan, Sudan and others.
I have no idea why type of system they are using. Therefore I cannot comment or verify whether they are implementing the true Muslim Criminal Laws or not. I for one have never heard them announcing that they are implementing the Muslim Criminal Law officially and outlining their version of the overall Muslim Criminal Law. Most of what I heard of is just their Tribal Laws and all reported scantily by Western media.
The main pillar of the Muslim Criminal Law that is Hudud is universal but the other components vary slightly to suite different conditions. This is not a flaw but a compassionate allowance by Allah on his servants and for any crime that falls under Hudud but lack the evidence and not able to fulfill the conditions, it will automatically fall under the other components of the Muslim Criminal Laws, the Muslim Shariah Laws or even the enactments.
Implementation of Islamic/Muslim Law in Malaysia
A multiracial society does not hinder the implementation of the Islamic Judiciary System. Like Dr. Asri said, the condition must be conducive, thus all effort must be made to make it conducive. There can’t just be an implementation from the government without making the society conducive. As I have mentioned earlier, the non-Muslims have the luxury of choice. There is no political version of the Muslim Islamic Law, no UMNO/BN version and no PAS/PR version, it is only the Malaysian version of the overall Malaysian Muslim Criminal Law, created and implemented by the Malaysian government elected by the people; the Malaysian Islamic Law System. The existing man-made laws in Malaysia need not be repealed.