Meaningless to Have Syariah Laws without Maqasid Syariah

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In the quest for political gain, the higher purpose of Islam – which is the achieving of justice, compassion, wisdom and righteousness – is easily forfeited.

It is an unfortunate fact of Malaysian politics that discourse revolving around complex political issues is often reduced to banal statements that are more emotional than rational. In most cases, they take the form of a simplistic dichotomy along the lines of identity, be it between Malays and non- Malays or Muslims and non-Muslims, and in most instances, both.

Take the case of the controversial private member’s bill tabled by PAS president Datuk Seri Abdul Hadi Awang, which seeks to amend the Syariah Court (Criminal Jurisdiction) Act 1965 to remove existing limitations on punishments imposable by the syariah courts. If passed, it would enable the implementation of most of the punishments prescribed by the two hudud enactments already passed by previous PAS state governments, namely the Syariah Criminal Code (II) Enactment 1993 in Kelantan and the Syariah Criminal Law (Hudud and Qisas) Enactment 2003 in Terengganu.

The questionable constitutionality of these enactments notwithstanding, the arguments that have thus far been put forth by the bill’s own sponsor have been, to use a euphemism, lacking nuance.

For example, Hadi was recently quoted as saying that all Muslims should support the bill because it was their duty to do so. He also took to shaming Muslim opponents of the bill as “strange” people, stating that there was no point being a Muslim if they did not want to raise the stature of their own court.

Hadi then went on to repeat his party’s customary line, which was that non-Muslims should not fear hudud laws because the syariah courts “only affect Muslims and have nothing to do with non-Muslims.”

It is obvious that Hadi’s defence of the bill is confined to dogmatic postulations with hardly any substance. In fact, it is nothing short of patronising for him to presume that every Muslim should support the bill as if it was a divine commandment lifted directly from the Quran. On the contrary, Hadi’s bill is merely a piece of legislation based on human interpretation, and correspondingly not beyond scrutiny or criticism.

Discrepancies in So-Called Hudud Laws

While the sacred text of the Quran may be considered irreproachable, there is no denying that man-made laws are prone to flaws and errors. Take, for example, the discrepancies between the two hudud enactments of Kelantan and Terengganu. In the latter, the act of bughah, or treason, was listed as a hudud crime, whereas it does not feature in the Kelantanese enactment. It was not until later that the Terengganu enactment was amended to remove it. Surely divine laws cannot possibly be augmented or truncated in such a way?

Another weakness in the enactments is the punishment of stoning to death, which is prescribed for married adulterers. In actual fact, stoning remains a key point of contention among Islamic scholars. There are many who are of the opinion that there exists no such punishment in the Quran. Furthermore, it is also said that capital punishment for adultery originated from Jewish customs, and may not be entirely congruent with Islamic tenets. If that is the case, then it would be erroneous to classify the punishment as part of hudud.

The Kelantan and Terengganu hudud enactments have also been criticised for their apparent social biases, particularly their discriminatory treatment of non- Muslims and women. These and many other shortcomings have been pointed out by various quarters, including in a comprehensive treatise by local Islamic scholar Hassan Kamali.1

The fact is that the translation of scripture into contemporary legislation is always going to be problematic. This is especially the case with hudud, as there remain many unresolved disputes, not only on its doctrinal aspects, but also its contextual relevance. The only certainty on this issue is that there is yet no consensus for its implementation in the modern world today. Therefore, to simply lay a blanket claim that hudud is “God’s law” and therefore unquestionable is ignorant, disingenuous and bordering on religious tyranny.

Dubious Implementation of Hudud

It is also clear that modern attempts to interpret and implement hudud have failed to uphold the ultimate objective of any law – to establish fairness and justice. Take for example the recent case in Qatar where a young Dutch girl was convicted and sentenced to jail for adultery after lodging a rape complaint with the police. In 2013 the same fate befell a Norwegian woman in the United Arab Emirates.

In 2009 a 19-year-old girl in Qatif, Saudi Arabia was sentenced to 90 lashes for being in close proximity with a man to whom she was not married, despite the fact that she had been kidnapped and gang-raped by seven Saudi men. What’s worse, her punishment was enhanced to 200 lashes after she brought her case to media attention.

There are many other such examples of discriminatory punishments meted out to women. Another tragic example is the case of Safia Bibi, a blind girl who was jailed in Pakistan for conceiving a child out of wedlock, simply because she could not identify her rapists.

If there are those who might say that the failure of other countries to implement hudud justly does not mean the Malaysian experience would be the same, bear in mind the chilling fact that the Terengganu hudud enactment contains the very same provision that punishes female survivors of rape with 80 lashes if they are unable to prove their claims.2

Another inconsistency in the implementation of hudud is the fact that those punished are more often than not from the underclasses – poor, uneducated and unable to seek legal counsel, while the elite get away with grand corruption and debauched lifestyles. In Brunei, for example, there is even a provision to exempt the royalty from hudud, as if divine laws did not apply to them.

Clearly, the empirical experience of hudud laws the world over is not as rosy as its proponents make it out to be. Instead of the promised fairness and justice, victims are often undermined and worse, punished for crimes committed against them. Do these incidents not serve to tarnish the good name of Islam?

At the same time, the argument that “non- Muslims are not affected” by hudud laws obviously does not hold water as most examples prove otherwise. This does not only apply to the implementation of hudud in the Arabian Peninsula and South Asia, but even closer to home. Earlier this year, an elderly Christian lady in Acheh, Indonesia was sentenced to public lashing after being found guilty of selling alcohol.

What guarantee is there that non-Muslims will not face the same fate in Malaysia? While the Constitution may exempt non- Muslims from the jurisdiction of syariah law, the fact is that it is not uncommon for syariah court decisions to have far-reaching impact on non-Muslims, as has been seen time and again in custody cases and inheritance disputes.

Palace of Justice in Putrajaya.

Maqasid Syariah

While Hadi may postulate otherwise, I would suggest that the duty of every Muslim, what more those in positions of authority, is not to display blind obedience but instead to uphold maqasid syariah, or the higher intention of syariah. This refers to the endeavour to attain and propagate the intrinsic values of Islam, such as justice, compassion, wisdom and righteousness.

From this perspective, punitive measures are but a means and not an end goal. Therefore, it is not only rational but also incumbent to question whether the implementation of hudud would serve the adherence of these fundamental values. Clearly, it would be meaningless to have laws that are not consistent with maqasid syariah, and an even greater tragedy if the flawed attempts to impose syariah laws end up undermining the image of Islam.

This is a particularly pertinent point to observe, considering that the hudud enactments that have been passed in Kelantan and Terengganu suffer from many of the same weaknesses and deficiencies as those in other Muslim societies around the world, none of which have been successful in establishing peaceful and socially progressive societies. Certainly, in the current climate of rising violence and cruel acts of terror ostensibly committed in the name of Islam, Muslims should be doing everything possible to shield the religion from further disrepute.

Conversely, the absence of syariah laws does not mean that maqasid syariah cannot be achieved. The fact that the most peaceful and prosperous nations in the world are not Islamic states with syariah laws proves that the civil state framework, as long as it is grounded on the right values, can provide a conducive environment for the realisation of the ultimate objectives of syariah – to uphold an Islamic way of life.

In the final analysis, it is extremely important that Muslims do not lose sight of the bigger picture. As pointed out by the eminent Islamic theologian Yusuf al-Qaradawi, there are only a handful of verses in the Quran that touch on hudud, compared to more than 6,000 other verses that lay out commandments on religious, civil, moral, cultural and even commercial matters in life.

In other words, hudud represents but a small part of syariah, and not a dominant aspect of Islam. Therefore, excessive preoccupation with the hudud agenda at the expense of the greater objectives of Islam as encapsulated in the principles of maqasid syariah would only condemn the religion to further misapprehension and estrangement, both externally and within the Muslim community.

1 Kamali, Muhammad Hashim (2003), Hukuman dalam undang-undang Islam: Suatu penelitian terhadap hukum hudud Kelantan dan Terengganu. Kuala Lumpur: Ilmiah Publication.
2 http://www.sistersinislam.org.my/news.php?item.907.10

Zairil Khir Johari is MP for Bukit Bendera, Penang, and executive director of Penang Institute.



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