Thursday October 6, 2011

Right to question hudud law

BRAVE NEW WORLD
By AZMI SHAROM

My problem with religion-based law making, is the idea that it cannot be questioned because it is divine in origin. In a democracy, if we can’t question the laws that affect our lives, then it is not a democracy at all.

POOR Fulham. Despite thoroughly thrashing Tony Fernandes’ Queens Park Rangers 6-0, all the sports headlines were about the other London derby where Tottenham Hotspur edged Arsenal 2-1. I suppose it is all about perception; just what is important and what is not.

As much as I would like to think that the game at White Hart Lane is an indication that the power in North London has shifted to Seven Sisters road, I am ever cautious and am reminded of the saying that a swallow does not a summer make.

Although I suppose in the case of the Spurs-Arsenal rivalry, considering that we have beaten them three times in the last four league clashes, it just may be there is more than one swallow fluttering about.

However, I digress. My earlier point remains and that is the perception of what is important and what is not.

At the moment, there are all sorts of news stories floating about and they point towards one thing, elections.

PAS has once again raised the hudud issue. Frankly, I am not too worried about this matter.

Pakatan Rakyat has stated that they will not go on with hudud unless all the component parties agree.

This seems highly unlikely as DAP will never agree and I am sure there are some voices in Keadilan too who will not be comfortable with hudud.

However, if they do try to introduce it, I will most certainly object.

The reason why I object is encapsulated in Hadi’s (PAS president Datuk Seri Abdul Hadi Awang) statement in the press on the matter (if it was accurately reported) where he said that hudud cannot be questioned.

Whoa there, “cannot be questioned”? I am sorry, if you have personal beliefs that affect only you and you won’t question them, that’s all fine and dandy.

But if you are going to introduce something into the public sphere, something that will affect the lives of the citizens, I don’t care if the source of what you are introducing is divine, it jolly well better be questioned.

And I don’t care if you say I have no degree from Al-Azhar and no goatee to go along with it, I will question any law that any government wants to introduce.

This has been my problem with any religion-based law making, the idea that simply because it is divine in origin means it can’t be questioned. In a democracy, if we can’t question the laws that affect our lives, then it is not a democracy at all.

And then there is poor Mat Sabu; charged with criminal defamation for questioning the heroism of the policemen who fought at Bukit Kepong.

I checked the Penal Code and sure enough, criminal defamation can be committed against the dead.

It’s a bit weird because how far back does this provision extend? I mean in historical matters there will always be different perspectives and differing opinions based on new findings and discoveries.

In case the Government decides to charge me with criminal defamation for questioning the character of one of our early leaders, let me use an American example.

Thomas Jefferson; renaissance man who helped draft the American Constitution and ensured a modern democracy where all men were created equal, or a shameless hypocrite slave owner who fathered numerous children with his female slaves?

Both views are correct and depending on your own take on history the view that will take precedence will differ.

And surely that was what Mat Sabu’s statement was; his take on history.

Was it insensitive, probably, should he be prosecuted for it, I don’t think so.

However, all these issues are really not that important to me. I think they are just the usual sound and fury that come with politicians posturing in the light that elections are coming.

The real important story for now should be the Budget and more importantly the alternative budget that the Pakatan has unveiled.

It is really good to see Pakatan acting like they have a Shadow Cabinet (although they don’t have one really).

We need to see concrete counter proposals from the opposition to not only help us question the Government’s Budget but also to assess the alternatives which a different government could give. This is vital in a mature democracy.

I certainly hope that discussions in the next couple of weeks will be about comparing the two budgets for surely that is more important than a hudud law which is unlikely to be implemented and Mat Sabu’s supposed lack of patriotism.

> Post Script: I don’t think the Fulham game was that important, who cares what happened at Craven Cottage. We beat Arsenal, again!

Sunday October 2, 2011

No hudud please, we’re Malaysians

SHARING THE NATION By ZAINAH ANWAR

ARE our politicians plain bad, crazy or stupid? In this divisive, corrosive, cynical political climate of ours, if I were the Opposition, I would jump and present my party as the party of first and obvious choice for the electorate.

I would have not only welcomed the Prime Minister’s bold announcements in repealing those repressive laws and states of emergency, I would also up the ante and begin a public debate on how we as citizens should exercise and enjoy our Constitutional guarantees of fundamental liberties.

I would be planning over the next few months on how to build public opinion to hold the Government accountable and ensure that whatever alternative national security or public order laws that might emerge will uphold my fundamental freedoms.

I would want to make it politically very costly for the Government if it falls short or back-pedal on the promises of democratic reform it has made.

Instead, what do we get? An offer of the hudud law and its grim serving of chopped-off Muslim hands and feet, and stoning to death! What kind of future is that?

And we have politicians, who supposedly hold the mantle of leadership, who simply and continually miss the point.

“It’s okay to implement the hudud law because it doesn’t affect non-Muslims.” So it’s okay for Muslims to be brutalised?

See what happens when the first Muslim hand gets chopped off for stealing a motorbike.

What if a medical team is on standby to gather the chopped-off hand and the victim and run to Terengganu or fly to KL for the hand to be stitched back?

What if the thief was with a Chinese or Indian accomplice who was sentenced only to a few months’ imprisonment under the Penal Code while the Malay thief is now disabled and unable to get a job, and be forever publicly stigmatised?

Or really, could this be a conspiracy to make the Malays permanently physically disabled in order to justify affirmative action in perpetuity? I wonder.

“Non-Muslims should shut up because it doesn’t affect them.” But they are Malaysian citizens who have every right to speak up on laws that allow for brutal and inhumane punishments against their fellow citizens, the majority population to boot.

Who wants to live in such a society when your neighbour, your friend, or your fellow citizen are subject to a cruel legal system?

How could I live with my conscience if I were a Chinese who has witnessed a rape, but my infidel evidence would not be accepted under the hudud law? No, I cannot keep quiet and accept such a law.

“Muslims who are not experts on Islam should shut up”. Then please take religion out of the public sphere and make it private between us and God. But not when I can be flogged 80 lashes for qazaf (slanderous accusation) if I report I have been raped and am unable to produce four pious and just Muslim males who witnessed the rape.

On top of that, my rape report could also be taken as confession of illicit sex and I could be charged for zina. And even if I could produce the four men, I would be torn apart wondering why four supposedly pious and just men watched me being raped.

And God forbid if I was single and became pregnant because of the rape. I would be charged for zina and lashed 100 times because my pregnancy is regarded as

evidence of illicit sex.

The burden is on me, not the state, to prove I was indeed raped. The evidential requirements make this impossible. And the accused rapist will be free from any hudud punishment by simply denying the rape.

And we are all supposed to shut up? No wonder some of our political leaders are bent on their so-called “Islamic state” and “Islamic law” project because it is so easy to fly the flag of religion and silence dissenting voices.

Even of their political opponents – many of whom can only summon the courage to claim: “I am not against the Hudud law, but the time and conditions are not right to implement it.” There are hundreds of commands, exhortations, values and principles in the Quran that we ignore or violate on a daily basis.

The command for us to be kind and compassionate at all times, the duty of a man to provide and protect his wife and children, the obligation of a leader to be just and fair in his ruling are just a few of these.

And what does an Islamist party prioritise as the hallmark of its piousness? The Hudud law. Instead of having the political courage to say no to the Hudud law, once and for all on so many available grounds – Islamic, constitutional, human rights principles, lived realities – so many of their political opponents dither and hedge.

It is so tiresome that we the rakyat are subject to this again and again.

Sisters in Islam wrote letters to the editor, published a book and submitted a memorandum to the Government, all objecting to the PAS attempts to introduce the Hudud law in Kelantan and Terengganu in 1993 and 2002 respectively.

When PAS recently announced it was shifting from its push for an “Islamic state” to a “welfare state”, many thought the leadership finally realised that its future lies with social justice transformation, not with a punitive and joyless Islam of gloom and doom.

On some issues, it was even looking more progressive than Umno.

But its Hudud law pronouncements have jolted us back to reality. So many in the PAS leadership and its rank and file remain stuck in medieval times, unable to imagine what justice should mean to an Islamist party in the 21st century and unable to envision what it means to be Muslim in a modern, democratic, progressive multi-ethnic, multi-religious Malaysia today.

Sunday October 9, 2011

Hudud is a matter of choice for Muslims

I AM writing this in response to Zainah Anwar’s article “No hudud please, we are Malaysians” (Sunday Star, Oct 2), where she presented her objections to the implementation of hudud law.

I understand that she sees herself as a “modern, democratic and progressive” person and, as such, has great difficulty in understanding why there exists to this day people who are “stuck in medieval times”.

I know that her views with respect to hudud and perhaps the Islamic legal system is shared by some Muslims and this is why I am responding to her article. First, I believe a brief explanation on what hudud law is about would be relevant.

Hudud law refers to those specific crimes and their related punishment which have been categorically mentioned in the Quran. As such, there are only a few crimes which fall under the purview of hudud law. Given that these laws are directly derived from the Quran, to the Muslim who believes that the Quran is the word of God, its implementation is a matter of faith.

The crimes which cannot be charged under hudud fall under the purview of ta’zir wherein the punishment and mode of proof is open to discussion and debate.

It has also to be understood that the implementation of hudud laws is subject to very strict and stringent requirements. Due to the stringent punishments which are to be meted out, the requirements to necessitate the implementation of these laws are also equally stringent.

The case of adultery

The question of four witnesses in the case of adultery and the subsequent qazaf punishment should the accuser fail to bring forth the four witnesses is frequently scoffed at but it is an example of the strict and stringent requirements for conviction in view of the stringent punishment to be meted out. To meet the requirement of four reputable witnesses makes conviction almost impossible.

Perhaps some may then question that if it is nearly impossible to get a conviction in the case of adultery, why then the need for such a law? The answer is to maintain the status of adultery as a heinous crime in the eyes of the public. No one will then brag of having had illicit affairs in public.

The social implications of adultery is obvious for all to see. Abandoned babies, divorces and such are clearly on the increase. We speak out against the stringent punishment for adultery but who speaks out for the dead baby found in the trash bins?

The purpose of this requirement is also to ensure that such accusations are not made irresponsibly and rumours pertaining to a person’s moral uprightness are seen as something unacceptable by the general public.

The case of rape

In relation to the issue of rape, it has also to be explained, in the event some people still do not understand, that rape and adultery are two different things. The law pertaining to adultery is not applicable to rape. An accusation of adultery is made by a third party wherein the act is done by other consenting individuals.

An accusation of rape, on the other hand, is made by the victim herself, not a third party, and it is far from being consensual.

Given the situation, the requirement for the four witnesses is not relevant to rape as it is to strengthen the accusation of the third party in the case of an accusation of adultery. In the case of rape, conventional items of proof can be used such as DNA to secure a conviction.

It is to be noted that in the case of rape, many rapists get off scot free as they allege it was consensual sex. This is more so in “date rapes” or cases when the rapist is an acquaintance of the victim.

In such cases, the victim has to prove that it was not consensual. In most cases the victim and her moral integrity is then put on trial. Under the Islamic system, consensual sex is not a defence for the rapist as in effect he would be admitting to adultery. The victim would be let off as she claims rape and her involvement in the sexual act was not consensual.

There are those who would argue that an unsuspecting male would then become the victim when a woman seduces him and she then cries rape.

To that, my response would be for the male to keep his pants on at all times. This in itself would be a deterent to the occurrence of adultery as the male would always be wary since he would have no escape route open to him should she intend to entrap him.

I do not deny that in some cases, there are those who insist that rape and adultery are the same. It has to be noted that such claims have no Quranic justification and can be taken as a misinterpretation of Islamic law by individuals who do not understand the difference between the two.

If this happens, I am sure the Sisters in Islam will be able to argue out the case for differentiating between the two cases.

Pregnancy out of wedlock

Similar is the case for women who become pregnant out of wedlock. All that needs to be done is to say that she was raped or forced to have sex and that would suffice as her defence. Anyone saying otherwise should bring forth four witnesses as they are then the ones accusing her of having committed adultery.

A case in point is an incident in the time of Umar Al-Khattab when an unmarried woman was brought to him after having given birth to a child. Umar wanted to punish her but when asked by Ali, she explained what happened some 10 months before when she was forced to have sex in exchange for a drink of milk while she was dying of thirst.

Given that explanation, Ali quickly retorted that she was a victim, forced to have sex and should not therefore be punished. She was then released.

It is to be understood that the spirit behind the implementation of the law is to find the accused innocent unless the evidence and proof are so overwhelming and all requirements have been met that it cannot be opined otherwise other than guilty.

It is not to be implemented with a blood-thirsty and overzealous attitude as what some may wish to portray.

Thieves and the cutting

off of their hands

In the case of theft and the cutting off of the hand of the thief, it has to be understood that in the first place, two righteous persons need to come forward as witnesses. They must have seen the thief stealing the item with their own eyes.

At the same time, the item stolen must be above a certain value, kept in a reasonably safe location and the reasons for stealing must be other than out of necessity.

Last but not least, the victim must insist on charging the thief or thieves in court knowing full well the punishment which will be meted out in the case of a conviction.

Should the victim choose to retract all charges, after having achieved an amicable out of court agreement, then again the conviction and thereby the punishment averted.

It must be always borne in mind that the purpose of the law is to act as a serious deterrent to all “would-be perpetrators” and in so doing, reduce crime significantly. It is not the objective to maximise the number of those punished.

Theft, especially one accompanied by violence, leaves traumatised victims in its wake. Victims of snatch thieves, dragged over a few metres, suffer serious injuries. Some have died. Pregnant women have been known to suffer miscarriage and even innocent bystanders have been known to have become victims of this crime.

While conviction is difficult, due to the requirements set by the hudud, its implementation will serve as an effective deterrent. Should, through its implementation, the occurrence of crime be significantly reduced, then we must say that it has achieved its objective.

If a single hand is in the end cut off, but through it a thousand incidents are averted, and with it also a thousand traumatised victims, would one not say that the law has been a success?

It has to be reiterated that in the event a case cannot be charged under hudud, due to it not fulfilling the explicit requirements, it can then be charged under ta’zir.

In the case of theft, this includes situations where there were no witnesses to the crime but the stolen material was found in the possession of the accused, or there was only one witness instead of two. In such cases the accused, if found guilty, will still be punished but not under the laws of hudud.

Conclusion

It can be concluded that much is not known about hudud law and how it works within the bigger overall legal system, particularly by those who wish to appear as champions opposing it. What should happen is for the proponents to present their case in detail first, before it is opposed based on the points presented.

Secondly, while the punishment for hudud crimes are quite explicit, the procedures for its implementation can be discussed and so designed so as to ensure that they will not lead to an easy conviction.

Third and last, it is up to Muslims to decide whether they wish for these laws to be implemented on them.

If that is what they wish for, understanding it to be a requirement of their faith, who then is Zainah to refuse them their choice? After all, is it not said that one man’s meat is another man’s poison?

For those who like to give the impression that when hudud is implemented there will be so many people walking around without limbs and there will be not enough stones to throw, they are admitting that there are many thieves and adulterers among us who would commit these heinous crimes unashamedly in broad daylight.

If society has come to this point, don’t you think that immorality in our society has reached uncontrollable levels and that hudud is imperative? Laws are not only to punish but to be a deterrent.

Allah SWT understands the nature of His creations better than we understand ourselves. It is our faith that Allah SWT knows best.

As Assoc Prof Dr Mohd Asri puts it precisely, as Muslim you cannot go against Allah’s decree (the Quran is the word of God) but you can question the enactments and their implementation.

Sisters, if you accept the word of Allah SWT, you would be doing a great service to Islam if you can sit down with the implementers to iron out what you may perceive would be unjust in the implementation of hudud.

DR SITI MARIAH MAHMUD,
MP Kota Raja, Selangor.

Friday October 14, 2011

Hudud raises concerns

I WRITE in response to Dr Siti Mariah Mahmud’s letter (Sunday Star, Oct 9) where she gave her opinion that hudud is a matter of choice for Muslims.

I found Dr Siti Mariah’s letter interesting and would like to thank her for shedding some light on the implementation of hudud in Malaysia.

As a non-Muslim however, her letter has not allayed any of my concerns and worries.

My understanding of Islamic law, gleaned from many books and articles, is that where hudud is implemented, Islamic law of evidence will also be applied.

Dr Siti Mariah referred to the testimony of two righteous persons who must come forward as witnesses in the case of theft to present evidence. I am uncertain about the definition of ‘righteous persons’.

Does this only cover Muslims or non-Muslims? What is the status of two Buddhist, Catholic, Protestant or Hindu persons who can give evidence of the theft?

It may be that theft of the property of this group falls under the definition of ta’zir as the strict evidential requirements cannot be fulfilled.

Dr Siti assures us that the thief will still be punished but not under the laws of hudud. I would be very alarmed by such an explanation as this means that Muslim thieves and robbers will target non-Muslims with the assurance that even if caught red-handed, their punishment will be less harsh than if they were to target Muslims.

I fail to understand how, in these circumstances, PAS can state with confidence that hudud will not affect non-Muslims.

Assuming that I am wrong and that the evidence of ‘two righteous persons’ includes the evidence of non-Muslims witnesses, then I am still troubled by the term ‘righteous’.

This implies that the victim’s character determines if he or she is entitled to justice.

I assume that a drug addict or alcoholic whose handbag has been snatched will not be able to give evidence or bring forward her friends as witnesses to testify against the thief.

If non-Muslims are permitted to give evidence against Muslim thieves, then my next question would be, in which court will the thief be tried?

As hudud is part of Islamic law, and the Ninth Schedule relates to the powers of the State, offences under hudud will probably be tried by the Syariah courts.

Paragraph 1 of List II in the Ninth Schedule of the Federal Constitution makes it clear that the Syariah courts does not have jurisdiction over non-Muslims. How then will the non-Muslim give evidence before the Syariah court?

It may be a simple matter to amend List II to permit non-Muslims to give evidence before the Syariah courts but this means that hudud will affect non-Muslims contrary to claims by PAS.

Further as a non-Muslim, I would be reluctant to support any such amendment as it could be interpreted to extend the jurisdiction of the Syariah court to other areas such as khalwat and zina which are not offences under my religion.

Furthermore, non-Muslims have been repeatedly ordered not to interfere in Islamic affairs or in matters solely within the purview of Islamic authorities or they will face repercussions.

Why then would non-Muslims be willing to submit to the jurisdiction of the Syariah court?

I am also concerned as to how the punishments under hudud will affect non-Muslims.

Currently, offences specific to the Islamic religion under the various State Islamic law enactments are tried by the Syariah courts. Religious officers are authorised to arrest and prosecute offenders.

Hudud covers theft, snatch-theft and armed robbery and like offences which are currently punished under the Penal Code.

There is no distinction between Muslims and non-Muslims in the Penal Code and those convicted of a crime will be imprisoned at the taxpayers’ expense.

If hudud were to be implemented, then assuming that the thief’s hand is chopped off, leaving him unable to work, will my taxes be used to provide welfare to him?

Will I be taxed more heavily to provide welfare payments to thieves who are unable to work or will the Islamic authorities take charge of his welfare using specific taxes such as zakat?

My understanding is that victims of crimes under hudud may choose to forgive the perpetrator of the crime and accept compensation instead.

How will this be carried out if the perpetrator is a drug addict with no means of compensation? Would this amount to one law for the rich and one for the poor?

Rich drug addicts may have family members who are willing to pay large sums to avoid the penalties under hudud. Is there any provision to avoid this?

The current criminal justice system makes the perpetrator pay for his crimes but also allows the victim to move on.

I cannot speak for my fellow non-Muslims but it would be extremely difficult for me to push for a penalty under hudud if my religion does not provide for it.

If I choose the hudud penalty, I will always wonder if it was vengeance or justice that motivated me?

Unlike Muslims, I cannot say that I am following God’s law and my choice will weigh heavily on my conscience.

It could also cause me and others like me, to be victimised by thieves and robbers due to my religious beliefs.

Dr Siti and PAS politicians have reiterated that hudud will not be implemented in a blood-thirsty and overzealous manner. How can they be so sure of this?

PAS itself has had to defend Muslims and non-Muslims from the accusations and actions of zealots so I am puzzled by their comments.

If what PAS means is that it will apply hudud according to the spirit of the law then how does it intend to guarantee that it will be applied in the same manner if another political party were to seize power in the states controlled by PAS?

How will PAS guarantee that hudud will not be applied to non-Muslims in future?

Non-Muslims perceive that their religious rights have been eroded over the last decade and it is unlikely that a guarantee by PAS or anyone else under current circumstances will allay their worries.

I fear that statements that hudud does not concern non-Muslims causes me great consternation and I have taken Dr Siti’s advice and presented my views in the hope that my concerns will be addressed on the points presented and that I will not be threatened for “interfering” in Islamic matters.

CONCERNED NON-MUSLIM,
Petaling Jaya.