The arguments in support of implementing hudud have used evidence from other Islamic majority countries to say that hudud can be implemented and also to say that the implementation of hudud will be effective in reducing crime.
But when the evidence is examined closely, comparative international data do not support the argument that the implementation of hudud have led to reduction of crime.
Just four days ago, it was announced that there would an indefinite delay in the implementation of hudud in Brunei. Some have used the Brunei example as ‘evidence’ that Malaysia too can implement hudud.
But Malaysia is not Brunei. In a recent talk held in February 2014 at the Institute of Advanced Islamic Studies in Kuala Lumpur entitled “The Implementation of Hudud in Brunei: Differences between Brunei and Malaysia”, the speaker, former Chief Justice of Malaysia, Tun Abdul Hamid emphasized the many differences between Malaysia and Brunei.
Brunei is an absolute constitutional monarchy with no popularly elected representatives or no provision in the constitution which says that it is the supreme law of the country. It is a unitary country with no distribution of legislative powers between the states and the Federation. There are no constitutional limitations on the jurisdiction of the Civil Courts or the Shariah Courts. The Shariah Court’s jurisdiction, for example, are not limited to persons professing the religion of Islam and there are no restrictions on the types of offences that can be placed under its jurisdiction. There is no law or body which can prevent the Sultan of Brunei to make a law and to implement it.
Malaysia, on the other hand, is a constitutional monarchy with an elected lower house in parliament and elected state legislatures in 13 states. The Constitution is the supreme law of the country and any law that is inconsistent with it is considered null and void. Our courts are empowered to declare a law, whether at the state of federal levels, as null and void if it conflicts with the constitution. Shariah courts are state courts and their jurisdiction is only over matters spelt out in the Federal Constitution and does not apply to non-Muslims.
As such, it is completely inappropriate to use the Brunei example as ‘evidence’ that Malaysia too can implement hudud law. The fact that Brunei too has temporarily suspended the implementation of hudud law should be a reminder to us of the practical complications of such laws and why they should not be implemented in a multi-religious and multi-racial society like Malaysia.
The former Chief Justice also shared his thoughts on the challenges of implementing hudud in other countries with Muslim majority populations. These thoughts should be considered by all who want to push for the implementation of hudud in Malaysia:
“From what we read regarding what had happened in Pakistan, Nigeria and Sudan, since the implementation of the laws in question, we are still unable to say that it is going on smoothly and has achieved greater justice. We read about cases of injustice to rape victims who ended being convicted of the offence of adultery, because they could not produce the witnesses and they were pregnant.”
“But we know that because “there were demonstrations every day”, the offence of rape was removed from the Hudud Ordinance and placed in the Penal Code again and tried by the civil court until now. I am quoting the words of Dr. Anwarul Haq, a Pakistani, who had spent about thirty years in the service of the Brunei Government, inter alia, drafting the Syariah Penal Code Order 2013 under discussion. Question: What was the reason for the daily demonstration and that only the offence of rape was removed from the Hudud Ordinance and placed in the Penal Code again? Certainly the demonstrations were in regard to the offence of rape. Why?”
“In an article written by Aminu Adamu Bello, from Faculty of Law, University of Abuja, Nigeria titled “Enforcement of Hudood Punishments under Islamic Law in Nigeria:Implications for a Plural Legal System”, the author stated that “…..data do not support an assertion that the enforcement of hudood penalties has had any effect on the nature of anti-social behaviour, especially armed robbery (hiraba), in these states.
On Sudan, “First, I remember reading an article (of course I am unable to trace it now) that, for political reasons, one night President Jaafar Nameiri appeared on national television and announced that from 12.00 am that night, Shar’iah would be implemented fully in Sudan. The next morning everything was at a standstill. Police did not know what to do, Prosecutors did not know what to do, lawyers did not know what to do and Judges too did not know what to do. Lawyers rushed to book shops looking for whatever books they could find on the subject.
Second, we also read that, in March 2013, Sudan’s Deputy Chief Justice, Abdul Rahman Sharfi, made an announcement that if doctors refuse to amputate the hands of convicted criminals, the Government would train Judges to do it! He also suggested that doctors who refused to carry out such punishments could themselves face prosecution!”
“So far, the countries that have implemented the hudud punishments, such as Pakistan, Nigeria and Sudan still lag very far behind in these areas compared to countries that do not implement the hudud punishments such as Sweden, Norway, Iceland, Denmark and Japan in those areas.”
For those who want to point to Saudia Arabia as a successful example of how the implementation of hudud has decrease the crime rate, the following evidence paints a cautionary tale:
The low number of reported rapes may be due to the harsh sentences meted out to rape victims in the past, which may have discouraged other rape victims from reporting their cases. In addition, according to Human Rights Watch in 2007, the criminalization of any contact between unmarried individuals of the opposite sex in Saudi Arabia severely impedes the ability of rape victims to seek justice. A court may view a woman’s charge of rape as an admission of extramarital sexual relations (or “illegal mingling”) unless she can prove, by strict evidentiary standards, that this contact was legal and the intercourse was nonconsensual.
In 2006, a 19-year-old known as the ‘Girl of Qatif’ was sentenced to 90 lashes for being alone in a car with a man to whom she was not married – considered a crime – at the time that she was allegedly attacked and raped by a group of seven other men. (At the time of reporting, four of the men received between one and five years in prison plus 80 to 1,000 lashes while the other three were awaiting sentencing.)
In 2007, the court in Saudi Arabia doubled its sentence of lashings for the ‘Girl of Qatif’ who had spoken out in public about her case and her efforts to seek justice. According to Human Rights Watch, the court also harassed her lawyer, banning him from the case and confiscating his professional license. An official at the General Court of Qatif, which handed down the sentence on November 14, said the court had increased the woman’s sentence because of “her attempt to aggravate and influence the judiciary through the media.” The court sentenced the rape victim to six months in prison and 200 lashes, more than double its October 2006 sentence after its earlier verdict was reviewed by Saudi Arabia’s highest court, the Supreme Council of the Judiciary.
In Pakistan, the consequences of the hudud laws have been even more severe.
According to a blog post titled ‘Growth of Violent Crimes in Reported News and Pakistani Society (1970s-2000s)’, the general population and crime statistics (as provided by the Pakistan Bureau of Police Research and Development: Pakistan Economic Survey) were as such:
|Total No. of Crimes Reported||Crime Growth Rate (%)||Crime per thousand of Population|
|2011||187||28,823 January only||–||–|
Various news reports have portrayed general crime rates as increasing alarmingly in the last five to ten years.
This means that the hudud law, introduced in 1979, had little effect in preventing the rise in crime rates in Pakistan since 1980!
On the subject of hudud, according to the ‘Pakistan’ page from the website ‘A Comparative Criminology Tour of the World (Dr. Robert Winslow, San Diego State University), dated 2001:
“…Rape is a pervasive problem. The [Human Rights Comission of Pakistan] estimates that at least eight women, five of them minors, are raped every day, and more than two-thirds of those are gang-raped. The law provides for the death penalty for persons convicted of gang rape. No executions have been carried out under this law and conviction rates remain low because rape, and gang rape in particular, commonly is used by landlords and criminal bosses to humiliate and terrorize local residents. It is estimated that less than one-third of all rapes are reported to the police. Police rarely respond to and sometimes are implicated in these attacks.
According to “Legal Injustices: The Zina Hudood Ordinance of Pakistan and Its Implications for Women” (2005) by Rahat Imran:
“A sixteen-year-old blind girl, Safia Bibi, was raped by her landlord and his son in Sahiwal, eighty kilometers away from the Punjab capital of Lahore in 1983. A case was registered against the culprits in July 1983, and the court asked the blind girl to identify the rapists. As she failed to identify them, Bibi’s consequent pregnancy was treated as evidence of fornication (as if pregnancy can only result from consensual sex), and therefore she was sentenced to three years in prison, fifteen lashes, and a fine of 1,000 rupees. The judge said the sentence was light because she was young and disabled.” – p. 90
The evidence from Pakistan shows that rather than dispensing justice, hudud has been used to punish rape victims, whom for various reasons, cannot prove that they were raped and end up being charged for adultery or fornification!
According to the Council for Islamic Ideology’s 2006 report, pertaining to its findings and recommendations about the Hudood laws, the Council itself noted that:
“Statistics show that Hudood Ordinance has not been effective in reducing the crimes in Pakistan. Although the number of registered cases is not a proper indication of crime statistics, but even that shows the rate of Hudud crimes has not decreased. The total number of cases registered under Hudood Ordinance arose from 75,943 in 2001 to 82,545 in 2002, and from 76, 063 in 2003 to 77,420 in 2004. This increase in the rate of crimes is despite the fact that the rate of conviction has been higher than the acquittal.”
In Nigeria, the Cleen Foundation (Center for Law Enforcement Education) released a summary of findings report on victimization surveys conducted in 2012. These surveys identify crime trends and indicate areas for further intervention. Their findings did not find any evidence those surveyed in the states in Nigeria which had implemented some form of hudud punishments experienced less crime in the form of theft of mobile phones, rape or attempted rape and robbery.
In summary, there have been numerous problems and challenges associated with the implementation of hudud in other Islamic majority countries including Brunei, Sudan, Nigeria, Pakistan and Saudia Arabia including the wrongful persecution and prosecution of rape victims.
In addition, the implementation of hudud in Pakistan and Nigeria does not seem to have led to a decrease in crime rates!
The evidence clearly does not support the arguments of those who are in favour of implementing hudud in Malaysia based on the experiences of other Islamic majority countries.