Monday, May 12, 2014

The Implementation Of Hudud and The Debate In Respect of it

[This is a translation of the article: "Perlaksanaan Hudud dan Perbahasan Berhubungnya"]

The question of the implementation of Hudud, or more accurately the Shariah Criminal Code, has taken centre stage of local political debate recently. All of a sudden, everyone is talking about Hudud, Muslim and non-Muslim, the pros and the cons. This situation is a direct result of the proposal made by Jamil Khir (UMNO) during the last Parliamentary session for a PAS member of Parliament from Kelantan to bring a private member’s bill with respect to the implementation of Hudud in the state of Keantan.

INTRODUCTION
Since then the issue of the implementation of Hudud has become the main topic of debate, to such an extent that it almost overshadowed debates on MH370, GST, TPPA, water rationing in Selangor and every other issue of debate before that. I can’t stop from being cynical and asking myself, “is that among the objectives behind the ‘Hudud move’ by the UMNO/BN?”

Be it as it may, as a Muslim and a PAS leader, I am thankful for this opportunity to clarify, especially to the Muslims, that the Islamic Criminal Code, including Hudud, is part and parcel of the religion and is therefore obligatory on the Muslims to seek to implement it. However, in the context of our current discussion, it is limited to its implementation in Kelantan alone and not the country as a whole as such is the current political reality with which we are faced with today.

LAWS AND SOCIETY
Everyone who is sane and reasonable in his thinking will understand that there exists a close relationship between the laws implemented and the values and norms of a society. Laws which are implemented within a society must necessarily be in line with the values and norms of that society.

In a ‘pirate society’ which holds to the values and norms of the ‘laws of the jungle’ wherein the strong have the right to oppress the weak, the act of taking from the weak is looked upon as something acceptable and normal. As such they will consider any law curtailing and preventing the strong from doing exactly that as something peculiar and illogical.

Such is also the case in a society made up of thieves who make a living by stealing, be it outside or within their own society. Obviously to such a society the ability to steal is seen as a skill which is both valuable and respected. As such it is illogical, from their perspective, for a thief to be punished and treated as a criminal! On the other hand, for a society which values the rights of ownership of an individual over property earned through lawful means, the act of stealing will be recognised as a criminal act which should be punished.

I still recall a forum held in Petaling Jaya when one of the panellists was Tun Salleh Abas. Tun made a statement, roughly meaning, “For a society which looks upon adultery as a heinous and despicable act, which betrays the trust and responsibility entrusted by God for man to ensure clean and clear lineages and as a source of disunity and dispute within society, they will want to ensure that adultery will be punished firmly and severely. This is because it is seen as a major crime. However, for a society which is ‘liberal’ in its values, obviously they will consider it strange when it is proposed that adultery should be considered a punishable crime”.

Perhaps the problem lies in that when the Hudud law is proposed for implementation the values and norms of society, especially among those who oppose, has deviated far from the Islamic values and norms. And to a large extent has, on the other hand, been influenced and shaped by values and norms of the west. This situation being the outcome of the colonial period and the continuation of the agenda of the once colonial masters by those who are impressed by western values and civilisation.

TAKING A PAGE FROM MUSLIM HISTORY
Obviously a situation where in a government wishes to re-implement Islamic law has been faced previously by the Muslim community in its eventful and challenging history. Perhaps the first of such an experience faced by the Muslim community was during the time of Caliph Umar Abdul Aziz (May Allah be pleased with him) who is recognised as the first Mujaddid (Revivalist) in Muslim history.

Umar Abdul Aziz was the 6th Umayyad Caliph. He came to the throne when some of the values and norms of the Muslim ummah had been spoiled by the Umayyad Caliphs before him. When he came to the Umayyad throne he declared his intention of wanting to return to the system of government of the Rightly Guided Caliphs. This included the implementation of the Islamic legal system as a whole and to put an end to the excesses of those in power who oppressed the common people.

While working to bring about these changes, one day his son commented to him that the process of change was too slow and taking too long. Umar Abdul Aziz replied to his son:

“Do not be too hasty, my son. Allah criticised the drinking of intoxicants (alcohol) twice in the Quran and only declared it haram on the third (revelation). I fear that should I place the demands of truth all at once on the people, the people will reject it in it’s totality and that would be a greater vice”.

I have discussed about this story not too long ago. Based on the sayings of Umar Abdul Aziz in this incident, it is clear that he understood the relationship between values and norms and the laws which he wished to implement. The example of the Quranic process in the banning of drinking intoxicants used by him in his argument is proof of the need for the shaping of values and norms before the implementation of laws. A hasty approach, although well intended, will result in something worse when the people do not understand and do not agree with the laws which are seen to be an imposition and this will cause them to rebel in opposition.

This case involving Umar Abdul Aziz is frequently used as an example when clarifying the principles of ‘Siyaasah Shariah’ or Islamic Politics wherein the negative consequences of an act has to be taken into consideration and avoided when intending to implement changes or undertaking a specific action. It can be categorised under ‘fataanah’ or ‘wisdom’ which is an obligatory requirement for any leader who wishes to lead his people to betterment for the sake of success in this world and the Hereafter. In leading his people in that direction, he should lead them step by step, with care and wisdom.

An analogy is often made of the role of the one who wishes to reform society based on Islam’s call and the role of a medical doctor. While the society which he wishes to reform is analogous to being the patient. If the patient is in a critical condition and bedridden, lying flat on his back, he needs to diagnose the disease and treat the patient until he improves step by step. From lying flat on his back to being able to lie on his side, from lying on his side to being able to sit up, from sitting up to standing, from standing to walking and from walking to running. If one forces the patient to immediately stand and run, most probably he will not only NOT improve but may even probably die!

THE APPROACH OF THE PROPHET (MAY PEACE AND THE BLESSSINGS OF ALLAH BE UPON HIM)
It is obvious that the challenges faced by the Prophet (MPBUH) was far more challenging than that faced by Umar Abdul Aziz. The Prophet faced a society which was completely ignorant about Islam whereas Umar Abdul Aziz faced a Muslim society which lived under an Islamic government and had an Islamic view of life which was somewhat corrupted. The ‘ignorant society’ was used to seeing oppression of the weak by the strong, adultery, the drinking of intoxicants, usury, corruption and all that was against Islam and this would surely be a major impediment to their acceptance of the Islamic legal system. Due to this, as is frequently highlighted, the Prophet’s call to Islam did not start with the Islamic legal system or the issue of halal and haram.

The approach of the Prophet which was guided by Allah in every step and action began with the Islamic belief system, which resulted in a divine view of life and the moulding of an upright character. Little by little the Islamic values and norms were implanted until what was despicable was seen to be despicable and what was honorable was seen to be honorable. This process took some time until the values and norms and the character so formed became a suitable ground for the implementation of the Islamic legal system especially that of Hudud. This step by step process in forming the values and norms and character is clearly elucidated in the verse 32 of the Chapter named ‘Al-Furqan’ of the Quran which means;

“And the Disbelievers say, why is not the Quran revealed to him all at once? It is such so that We will form and mould your views and understanding through it (the Quran). And We reveal it to him (the Quran to the Prophet Muhammad) bit by bit in a structured manner”.

The case of the prohibition of drinking intoxicants is frequently used by the ulama’ and Islamic scholars as a classical example of this step by step process. The first revelation in this process adviced the Muslims not to do their prayers (solat) when in a state of intoxication (Chapter An-Nisa verse 43). This verse was revealed after an incident when prayer was led by someone who was drunk and his reading while in prayer became erratic and confused. At that time, intoxicants were not yet banned or declared haram and the Muslims, although already in Medina, were still drinking intoxicants.

The second revelation then emphasised that although there was some benefits in the intoxicants, their harm far out-weighed their benefits (Chapter Al-Baqarah verse 219). With the coming of this second revelation a portion of the Muslim community stopped drinking intoxicants as a virtuous belief system and world view and their upright character could see the evil that was in intoxicants.

Through the third revelation Allah declared intoxicants as haram and clarified that intoxicants and gambling were dirty and the manipulations of Satan and all believers must refrain from them (Chapter Al-Maidah verse 90 - 92). When this verse was revealed, all the containers filled with intoxicants were turned over and completely emptied. After this only was the Hudud punishment for drinking prescribed and enforced, which is after the values and norms which looked upon intoxicants as a weapon of Satan to destroy man had become the dominant value in the society.

If one was to think about it logically, this approach would seem unnecessary as the Muslim community in Medina was made up of the migrants from Mecca (Muhajirin) and the Helpers (Ansar) who were the locals of Medina. The Muhajirin had already migrated from Mecca and in doing so sacrificed all they had for the sake of Islam. The Ansar had already pledged loyalty to the Prophet promising to defend him and struggle with him for the victory of Islam with their wealth and their lives. Yet even in such a situation, wherein the commitment to Islam was total and complete, in the banning of drinking intoxicants, Allah still chose the step by step approach or ‘tadarruj’.

Maybe in here lies the sociological and psychological wisdom which needs to be contemplated over by all those who wish to establish Islam in the countries within which they live. It is to do with the question of first preparing the society until the values and norms of the society is in line with the laws that they wish to see implemented.

THE APPROACH OF PRESENTING THE LEGAL SYSTEM AS THE PANACEA OF ALL PROBLEMS
There are those who wish to present the Islamic Legal system as a panacea to all problems faced by human society without taking into consideration the need to mould social values/beliefs and human character. Such an approach is as faulty as that which proposes that social values/beliefs and strong character is sufficient to guarantee human happiness without the need for laws! In reality, without a correct set of social values/beliefs and righteous character, even the best legal system in the world will fail to solve the conflicts within society. And that is exactly the reason why Allah revealed a complete way of life for humanity with its value/belief system, code of conduct and behaviour (character) and the shariah. And the work towards its realisation followed in that order.

The Prophet (MPBUH) did not propose to the people of Mecca a legal system in order to solve the issues of injustice and oppression which had become a norm in Meccan society. This was because the Prophet knew the solution was more complicated than that. Because no matter how sophisticated a legal system may be, in the end it was man that was to implement it. And a corrupt and unprincipled person will surely defile the justness and fairness of any legal system being implemented including that which is based on divine revelation! The laws of such a system would already be contrary to the values, norms and character of the members of Meccan society, to make matters worse, those who were to implement the laws would be made up of the corrupt and unprincipled!

What is the point of a sophisticated and structured legal system combined with laws and punishment which are derived from a divine source if the judges can be bought by offers of position and money and many within society are willing to be ‘paid witnesses’ giving false testimony? At the same time evidence can be fabricated by the ‘police’ and false testimony is misconstrued as an ‘act of patriotism’ and as ‘a service to the nation’? Or holding to the misconception that by using a portion of their ill-earned money for Hajj or Umrah they can absolution for their false testimony?

Would it then be something impossible in such a situation for someone to be brought forward declaring that he was forcibly sodomised and coming with him an array of falsified evidence and paid witnesses such that in the end the accused is found guilty and sentenced via hudud or takzir? Or a thief is released while an innocent person is then framed for the crime through the use of paid witnesses and falsified evidence as well? Such that in the end the innocent man is victimised while the real thief escapes punishment? Or a killer is protected and an innocent proclaimed guilty and punished through paid witnesses or falsified evidence? Or through judges who are bought?

Some view the situation wherein power is understood as a responsibility and misuse of power as a major betrayal as the basis for ‘good governance’. In such a situation the judges, police officers and members of the general public will be unwilling to become tools of one group in victimising another group. Due to this they believe that good governance is a pre-requisite to the implementation of the Islamic Criminal code as they fear that injustice and persecution will occur under the banner of Islam. For the Muslim, good governance will occur when the Muslim has corrected his belief/value system (understanding of the purpose of life) and strengthened his character. At that time every act is driven by the fear of Allah’s wrath and a desire for His pleasure. For the non-Muslims, their values and norms plus their vision of life wherein the question of justice is of utmost importance can be the barrier which prevents them from acting in a corrupt manner.

I do not mean that men must achieve a level of perfection (maksum) before the Islamic Criminal Code can be implemented. Perfection (maksum) was not achieved even in the time of the Prophet (MPBUH)! It suffices if the character of the majority in society is righteous and trustworthy while a sense of accountability towards God and their fellow man is the dominant value in the society.

So it can be concluded that what is needed is not just the society but also those in power must uphold the values and norms while possessing the character which are in line with the system and objectives (Maqasid) of the Islamic Criminal Laws.


THE IMPLEMENTATION OF SHARIAH CRIMINAL CODE IN KELANTAN
There may be some who would conclude after reading what I have written that I oppose the implementation of the Islamic Legal Code in Kelantan. Such a conclusion would be erroneous.

For the state of Kelantan which has been under a PAS government for 24 years including this year, I believe that the values and norms of the Kelantanese society is in line with the Islamic legal system. And in the situation wherein the Shariah Criminal Law Act was passed 21 years ago and PAS winning election after election since then, its implementation is something which the Kelantanese society aspires to. There can be no stronger proof of a society’s readiness to accept the implementation of the Shariah Criminal Law besides that of giving 5 consecutive election victories to the party that declares its intention to implement it. This is what has happened in Kelantan.

Through its implementation in Kelantan, it is hoped that the justice and effectiveness of the Shariah Criminal laws can be proven and highlighted. Through this all the criticisms and ridicule it has suffered all this while will be proven false and inaccurate. I am sure that all who are involved in this pious endeavour, in particular those who will enforce it, understand and appreciate their enormous responsibility to Islam when they implement it. I am sure that they understand that if correctly done, their efforts will enhance the image of Islam and will further damage it if otherwise, inaudzubillahi mindzalik (we seek Allah’s protection from such an outcome).


THE FEARS OF OUR PARTNERS IN PR
We all understand that the issue of the implementation of the Shariah Criminal Code is a matter of concern for our partners in PR due to various reasons. I understand their reservations and acknowledge their right to disagree with its implementation. Admittedly it is not part of the items which have been agreed to together and as such it is wrong for them to voice their disagreement. By so doing they have not gone against any of the terms of agreement of PR and as such there is no need for the agreement to be terminated.

Nonetheless I am somewhat surprised at the level of concern expressed by them which seems somewhat over exaggerated. The constitution is not amended. What exists today will continue to exist in its present form. What will happen is that Kelantan will implement it through the special permission from Parliament and the such and it will be implemented on only the Muslims. Except for those non-Muslims who request they be included. And if it is not implemented well and injustice occurs, then it can be easily stopped by the people of Kelantan voting out the PAS government in the next election. In other words it is not something which is irreversible such that the rakyat are forced to live under it even though they disagree with it. Is the level of concern therefore justified?

I wish to propose to all groups, let it be implemented and we evaluate it together. Let’s not jump to conclusion, saying that it will result in injustice when it has not even be implemented. Let it be implemented and if it results in injustice, the Kelantanese will pass judgement on the PAS government in the next election. And if the opposite was to occur, meaning that justice is established and the Kelantanese continue to give their support to PAS and through it the continued implementation of Shariah Criminal Law, then respect their choice. And surely, this is the best way to resolve the debate.

WaLlahu 'Alam
KHALID SAMAD

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