Hard to apply hudud laws

A debate on the implementation of hudud laws is raging in neighbouring countries. One issue that has received much attention is the impact on non-Muslims. Will they be subjected to hudud laws? Even if they are not, will there be exceptions made in cases where a non-Muslim commits a crime together with a Muslim?

Social media is rife with emotionally charged opinions. The racial and religious pressure group, Ikatan Muslimin Malaysia (Muslim Fellowship of Malaysia), has questioned the citizenship status of non-Muslims who are unhappy with hudud laws.

Senior clerics like the fair-minded former Mufti of Perlis, Dr Asri Zainal Abidin, have surprisingly taken the position that non-Muslims should be included. Social activists lament the injustice that would be done if a non-Muslim received a lighter sentence under civil law compared with a heavier one imposed on a Muslim under hudud law for the same offence.

Non-Muslims are generally very anxious. The hudud issue has the potential to divide society deeply. It will have a profound impact on inter-religious relations. Singapore's religious harmony may even be affected by the spillover effects. This is particularly so if the issue gives rise to gross misperceptions about Islam and becomes a wedge in relations between Muslims and non-Muslims.

One critical point that needs to be appreciated is that it is not easy to apply hudud laws. There are onerous pre-conditions to be fulfilled. This is to ensure that the implementation of such laws does not violate the principles of justice and clemency, which are central to the spirit of Islamic laws. It is therefore prudent for the purpose of good inter-religious relations for one to discern between the careless implementation of hudud and the tolerant and merciful nature of Islamic laws.

It is useful to listen to voices of reason during times when emotions run high. Many Islamic scholars have discussed hudud in contemporary society, and advocated re-thinking on its implementation. Several have suggested alternative ways of maintaining public order and security that conform to the spirit of Islam.

One such scholar is Mr Muhammad Sa'id Al-Ashmawy, the former chief judge of the High Court of Appeals in Egypt. He was deeply involved in the debate on the alignment of civil laws with Islamic laws in Egypt.

In a book titled Political Islam in 1987, Mr Ashmawy explained that there are four penalties under hudud that are specifically mentioned in the Quran. They are for theft, false accusations of fornication, adultery and brigandage. Contrary to popular belief, penalties for apostasy and drinking alcohol are not found in the Quran.

Many stringent conditions must be met before punishment can be meted out. For example, in the case of theft, where the punishment is amputation of the hand, the court will have to ascertain that the object of theft is marked by the owner (for example, the owner's name is on it); it is in a well-guarded place; and it has monetary value. The thief must not be in great need of the object, and he must not have any "quasi-ownership" claim.

The above conditions mean that pilfering, plundering, pickpocketing and theft of public goods cannot be classified as theft under hudud laws.

As for the hudud punishment for fornication, before it is meted out, the court must hear the evidence of four reliable witnesses who have seen the crime with their own eyes from start to finish and who can swear that "a thread could not have passed between the man and the woman"!

This is just a sampling of the onerous conditions that are utterly impracticable to fulfil, thus rendering the application of hudud punishments near impossible.

Furthermore, according to the Prophet's tradition, the application of hudud punishments should be withheld if any doubt exists regarding the facts, witnesses, victims or the accused.

Finally, hudud punishment cannot be applied to a criminal who repents after the crime and before the execution of the punishment. In short, Muslims are enjoined to show tolerance as well as clemency. Every time they show mercy and avoid the application of hudud punishments, they are acting in the good spirit of Islam.

How then will public order and security be ensured if hudud punishments are practically impossible to apply given the tough pre-conditions?

Scholars on Islam have argued that it is not against Islamic doctrine to rely on the system of punishments provided for under civil laws in lieu of hudud punishments. These civil laws are indeed conforming to the spirit of Islamic laws or syariah because they dispense justice and reaffirm values as well as principles that are held dear in Islam.

Some examples are civil laws that punish those who harm the weak in society, damage the environment or are involved in acts of corruption.

These are laws that Singapore is known for. It is interesting to note that religious scholars from conservative Islamic countries who visit Singapore remark that its civil laws exude the spirit of the syariah, even though it is a non-Islamic state.

There is always a concern that legal judgments made in the name of religion may be abused by an unjust government for reasons of expediency, or by a harsh judiciary on the basis of arbitrary arrests or false witnesses.

This is why scholars like Mr Ashmawy take the strong position that Muslims should consider implementing hudud laws only if their societies consist of pious, honourable people and leaders of high moral integrity. Muslims should therefore focus on building a just and moral society governed by trustworthy leaders, rather than risk the grave error of implementing hudud punishments without fulfilling the onerous conditions.

stopinion@sph.com.sg

Mohammad Alami Musa is Head of Studies in Inter-Religious Relations in Plural Societies Program, RSIS, NTU

This article was first published on May 28, 2014.
Get a copy of The Straits Times or go to straitstimes.com for more stories.