By Nurul Haq Shahrir
Free Malaysia Today
February 25, 2017

It is not whether the shariah should be reintroduced or reinforced as statutory law, but rather how can medieval Islamic jurisprudence be adapted to meet the needs of justice in modern societies.

COMMENT

The two leading Malay-Muslim political parties, PAS and Umno have been competing to be the greater defender of Islam since the early eighties – a necessary stratagem in bolstering the credibility of their Islamic credentials in the eyes of the Malay electorate.

Due to the multi-religious composition of the governing coalition, Barisan Nasional (BN), Umno which is the leading party of Barisan Nasional cultivates its image as the promoter of a moderate, pragmatic form of Islam and contrasts itself against the ostensibly backward, conservative brand of Islam as advocated by PAS whose calls to “Islamise” the laws of the country from as early as the 1980s were emboldened by the recent tabling of the motion to amend the Syariah Court (Criminal Jurisdiction) Act 1965, or what is commonly referred to as Act 355, by PAS president Abdul Hadi Awang in November 2016.

The Malaysian government’s earlier move on May 26, 2016 to expedite for parliamentary deliberation the private member’s bill introduced by Hadi too surprised and unsettled many. The move has been construed by many as a step towards the implementation of Islamic penal code (also referred to as hudud).

Others, in particular the prime minister and his cabinet members have dismissed this reading and clarified that the bill would only augment the sentencing power of the shariah court, which only involves Muslims.

Obviously, one cannot deny that this move has also been interpreted as nothing more than a ruse to boost the political credentials of Umno and PAS in the face of the coming general election.

It would eventually come to nothing. It is all part of the ruling coalition’s political gambit to win the next election. That is totally understandable and politically imperative to do so.

However, when given the floor, Hadi merely read out the motion and then requested for its debate to be postponed to the following parliamentary sitting in October/November 2016. This has not only caused consternation but also aroused suspicion as to his intention in doing so.

In that following sitting, the proposed motion surfaced again. On November 24, 2016, rather than debating the proposed bill, Hadi sought to revise the motion but again asked to shelve its debate to the parliamentary session in 2017.

These desperate attempts to “magnify” the bill’s punishment is flimsy at best, switching on and off despite the party unswervingly outlining its intention to enact the contentious hudud laws in Malaysia.

Since murder, robbery, theft, rape, sodomy, false testimony and so on are under the jurisdiction of the Federal List and therefore cannot be gazetted by the State, Hadi was forced again, to change his stance, and only amended 355 to limit the current three years imprisonment, RM5,000 fine and six strokes of the rotan to 30 years jail, RM100,000 and 100 strokes of the rotan or a combination.

This 100 strokes is crucial for PAS to implement the hudud punishment of 100 strokes for illicit intercourse and 40-60 strokes for consuming alcohol. False testimony is 80 lashes.

These are corporal punishments under Hudud. Hence, the proposal to amend 355 is a step to enforce hudud, and the ruling coalition was in fact in denial to say otherwise.

The incongruity on Hadi’s part and the fact the Act 355 has to be revised several times demonstrate that this so-called Islamic penal code is nothing but a political “production”, made-to-order. In fact, it is against Islam and has nothing to do with the shariah.

Thanks to its greed for political mileage, PAS’ abuse of the sacred term “shariah” conjures up images of a ruthless, rigid and inhumane legal system, characterised by amputations of limbs, beheadings, public shaming by flogging and stoning to death. With such a grim picture of shariah in our minds, it is little wonder that the call made by PAS to augment the Islamic penal code was received with such animosity.

Justice, a central Islamic theme

The Malay Muslims have to realise that the Islamic governance isn’t about imposing radical interpretations of the shariah; it’s about taking care of society’s welfare and interests. It cannot be denied that the call to intensify the jurisdiction of the shariah court is mainly built upon popular passions, the understandable thirsts of Muslim masses to be more faithful to Islam, but their reintroduction into state law has been very problematic on many angles.

Instead of applying these laws in a pharisaical and decontextualised manner, we should examine the source texts in light of the objectives of shariah and their historical context before rushing to mete out legal punishments that a large number of people, many Muslims included, deem barbaric and unnecessary.

Any enforcement of the Islamic penal code must above all address the objectives of shariah (or maqasid al-shariah), which are the protection of faith, lives, intellect, lineage and property.

Muslim jurists are unanimous that the Islamic laws are legislated to ensure justice between the people and to safeguard their natural rights to life and property. In this regard, the approach of Imam Al-‘Izzuddin Ibn Abdul-Salam is the most pragmatic.

The erudite Shafi’ie jurist explains that executing the people’s interests necessitates safeguarding those interests and preventing what is contrary to them, even though that may involve stopping people from doing things permitted by religion, such as proscribing polygamous marriages, which in today’s social construct have deviated from its original purpose of providing welfare to women and orphans.

A Muslim ruler may prohibit Muslims from selling alcohol or he may permit it, with the point always being to look after the interests of the community in the best possible way irrespective of religious grounds. He may even permit some lesser harms to prevent greater harms or abandon some lesser interests in order to execute greater interests as the Prophet did and as was manifested in the revelation throughout his ministry.

Ibn al-Qayyim further clarifies, “The truth is that God has made clear in His shariah that its objective is the establishment of justice between His servants as well as dispensing fairness among the people. Hence, any path that leads to justice and fairness, is (necessarily) part of the religion and does not contradict it.”

[Working in a place that sells alcohol or prohibited food carries a different ruling depending upon the circumstances. Generally it is prohibited for a Muslim to work in a place which sells alcohol or serves alcohol in its premises. However, the Hanafi school of thought offers a dynamic view that permits such transaction provided that the other party is a non-Muslim [and/or in a domain of non-Muslims]. The wage would be valid and permissible.]

In other words, any legal system that leads to justice and the protection of people’s rights is necessarily a part of Islam, even if it is not based on an explicit religious text.

The question is not whether the shariah should be reintroduced or reinforced as statutory law, but rather how can medieval Islamic jurisprudence be adapted to meet the needs of justice in modern societies?

Moreover, a literal and decontextualised application of the shariah in some Muslim nations has led to injustice as these specially tailored laws have disproportionately targeted the lower classes, religious minorities and women, and they have been implemented without necessary due process and appropriate legal counsel in defence of the accused.

It cannot be said that an unjust application of an Islamic law is, in reality, a scheme intended by the All-Merciful God.

All about mercy and compassion

That the shariah is mercy-bound has been emphasised by the renowned legist, Ibn Al-Qayyim: “Truly, the shariah is founded upon wisdom and welfare for the servants of God in this life and in the hereafter. Its essence is justice, mercy, benefit and wisdom. Therefore, every matter that abandons justice for injustice, mercy for its opposite, benefit for harm, and wisdom for foolishness is not a part of the shariah even if it was incorporated therein by way of (scholarly) exegesis.”

That is to say, if the execution of the letter of the law does not bring about benefit, justice, mercy, and wisdom, then it cannot properly be considered a shariah-compliant law even if it is based on a scholarly interpretation of the Quran, the Sunnah, scholarly hermeneutics or juristic diktats.

Therefore, taking part in building an Islamic nation is not enforcing, or based upon enforcing the shariah per se but rather it is looking after society’s interests. This means that laws are passed based upon public interest and common values not specific to the Islamic faith because the public interests are are rationally and customarily known to both Muslims and non-Muslims.

This boils down to the primary objective of the shariah, which is dispensing mercy. Exacting punishment on the other hand, is not part of the equation.

The Quran says that the Prophet Muhammad was sent to all the worlds as God’s instrument of mercy (Quran, 21:107). He was mercy made flesh, the walking mercy.

From this, and many other source texts, it can be surmised that mercy is the all-pervasive objective of the shariah. For this reason, Muslim jurists have, to all intents and purposes, used it synonymously with public interests.

Since mercy is the aim of the shariah, it is evident that this cannot be achieved if the Muslims who enforce it are not imbued with this vital quality.

This is in agreement with the statement of Imam Al-‘Izzuddin on this issue: “The public interests and harms of this world and their means are known by necessity, experience, custom and careful assessment. If any of that is ambiguous, its meaning should be extracted from it proper evidences. Anyone seeking to know how to distinguish between public interests and harms and which outweighs the other, must submit it to the test of (sound) reason on the assumption that the shariah has not mentioned it.

“Let him build his judgements on it; he will discover that almost none of them violates the rules of the shariah except the prescriptions and proscriptions that God has imposed on His Servants as merely devotional matters without revealing to them the relevant aspects of the public interests or harms.”

Hence, it is upon the basis of common values and interests that nation building can take place, across different religions and cultures.
This is contrary to Hadi’s private member’s bill that only focuses on the penal code, which is a very small portion of the entire shariah. Much of shariah deals with individual and collective ethics, morality and spirituality.

The second caliph and hudud

While it is understandable that much of the shariah is still very relevant for Muslims in their daily lives, it has to be pointed out that the penal code of Islam cannot be implemented without the pre-requisite of Islam’s just social and economic system.

Umar al-Khattab, the second caliph, understood this wisdom of shariah when he temporarily suspended the punishment for theft at a time of widespread famine in Medina because he concluded that the times were so tough that people might steal food and other stuff to feed their families, and who ordinarily might not steal.

This did not imply that Umar rejected hudud, nor that he annulled the shariah. It is simply an indication that the application of the Islamic penal code comes with conditions and it is neither rigid nor static, because the idea is that we are supposed to worship the Giver of shariah and not the shariah itself.

The action of Umar demonstrates that “augmenting” the punishment was never the aim of the shariah. Islam is not a religion of torment. When the Most Compassionate God pronounced Islam as the perfect way of life, He conjoined it with “the consummation of His Grace” (Quran, 5:3) – which in Quranic parlance denotes “the unmerited favour of God toward humanity that frees the believers from difficulty, predicament and anxiety.”

Surely, the rapacity to inflict punishments and the zeal to heighten them in all haste are not in sync with “the completion of God’s Grace.” Therefore, the amendments to Act 355 seeking to impose greater punishments are against the spirit of the shariah.

Meting out punishments was never the objective of Islam. The Prophet clarified that the chief purpose of corporal penalties was simply to reduce the punishments in the Hereafter: “Whoever commits sins and is penalised for it, then the punishment expiates their sins, but whoever commits sins and God conceals it, then it depends on God to pardon them or punish them”.

However, even better than seeking to be punished via hudud, according to the Prophet, was attempting to resolve amicably and forgive related sins without resorting to such punitive actions.

Although, the early Muslims did often voluntarily approach the Prophet to confess or arbitrate charges involving hudud, the Prophet himself expressed many times that it was far better to forgive and resolve hudud crimes without his intervention.

He said: “You shall avoid executing hudud on Muslims as much as you can. If the defendant has a way out, then leave him to his way. Truly, it is better for the ruler to err in forgiving the errant person than for him to err in punishing the innocent.”

The Prophet’s companion Abu Huraira related another hadith in similar vein, “Avoid applying hudud penalties as long as you find an excuse to avoid them”.

In other words, it was better for members of the community to address actions that might invoke the hudud penalties among themselves, rather than seeking the arbitration of an external adjudicator in the form of a Prophet.

If the crime had not come to his attention, kept hidden or had been voluntarily forgiven, no penalty was necessary – the gravity of the crime was not a question here. This is demonstrated by the authentic Hadith transmitted by Abu Dawud wherein the Prophet said, “Pardon in hudud among yourselves, for the legal penalty for any wrongdoing reported to me will imperatively be applied”, and the saying of Umar, “That I relax the hudud is more beloved to me than applying them in doubtful situations”.

The thrust of these reports is that we ought to be giving leeway not to mete out the harshest punishments (which is PAS’s ultimate goal!), rather than demanding their uncompromising application.

Prophet waived punishments

According to the Prophet’s companion Anas Ibn Malik, in one incident, the Prophet refused to accept the confession of a man who was so persuasive to be punished for his sins. The man made his final attempt by praying with the Prophet.

When the prayer had ended, the man repeated his request. The Prophet asked, “Were you present with us at the time of prayer?” The man answered in the affirmative. The Prophet replied: “Go, for you have been forgiven!”

These reports show the flexibility of the Prophet when it comes to corporal punishments, especially when it involved confession of the criminals.

Hadith literature is replete with accounts indicating confession may be retracted when it comes to crimes that solely involve the violation of divine rights (e.g., adultery and intoxication).

In the hadith compilation called Mustadrak, for example, Imam Al-Hakim recounted an incident when Ma’iz Ibn Malik came to the Prophet confessing to adultery, the Prophet said to him, “Probably you only kissed her or winked at her or ogled her?” but Ma’iz replied in the negative and kept on insisting.

So, the Prophet asked around to inquire if Ma’iz was known to be insane. Nevertheless, it can be inferred from the Prophet’s question that he meant to give Ma’iz a chance of retracting his confession.

This view was forwarded by the leading Shafi’ie jurisconsult, Khatib al-Shirbini in his Mughni Al-Muhtaj, and also espoused by the Hanafis as stated by Al-Kasani in Bada’ie Al-Sana’ie.

The story continued with Ma’iz fleeing the scene, before he was caught and eventually stoned to death. The Prophet who was aghast at the incident said, “Why didn’t you leave him? Perchance he may repent and God will forgive him!”

According to Al-Bahuti, the latter-day Hanbali authority on Islamic jurisprudence, this remark from the Prophet denotes that repentance made after a confession stands as a retraction.

Because confession is an information that involves truth and falsehood, for a person to retract shows the contrary which raises doubt, while the shariah axiom is to avert hudud punishment if doubt exists.

Surprisingly, the Maliki hadith expert, Ibn Abdul-Barr reports that there is consensus among Islamic jurists on the invalidity of a confession or testimony that has been retracted in any hudud punishment.

Unfortunately, these merciful aspects of the shariah were never highlighted by Hadi who is bent upon turning Islamic law into bizarre and gruesome forms of punishment.

Divine mercy and non-Muslims

Then, there is also the question of limiting the amended Act to Muslims. The Bill seeks to allow Islamic courts to impose stricter punishment, except death penalty and it seeks to amend Section 2 of the Act to state that the shariah courts will have jurisdiction over Muslims only.

By this premise, PAS and Hadi seek to victimise the Muslims for nothing but their political gains. They are also being hypocritical about the extent of their beliefs. This is due to the fact that the scope of the shariah, which is based upon “justice”, does not exclude non-Muslims and has never been limited to Muslims.

“Justice” or ‘adl (lit., “placing things in their rightful place”) is an Islamic obligation and the shariah permits no injustice.
The centrality of justice to the Quranic value system is displayed by the passage, “We have sent Our Messengers with evident miracles and through them have brought down scriptures so that people may maintain justice…” (Quran, 57:25)

The expression “Our Messengers” shows that justice has been the goal of all revelation and scriptures sent to humanity. The passage also indicates that justice must be measured and executed by the standards and guidelines set by divine revelation. Islam’s approach to justice is comprehensive and all-embracing.

Therefore, any path that leads to justice is deemed to be in harmony with the shariah. God has demanded justice and, although He has not prescribed a specific route, has provided general guidelines, on how to achieve it.

He has neither prescribed a fixed means by which it can be obtained, nor has He declared invalid any particular system or methods that can lead to justice. Therefore, all means, procedures, and methods that facilitate, refine, and advance the cause of justice, and do not violate the shariah are valid.

The Quranic standards of justice transcend considerations of race, religion, colour, and creed, as Muslims are commanded to be just to their friends and foes alike, and to be just at all levels, as the Quran puts it, “O Believers! Stand out firmly for justice and bear true witness before God, even though it be against yourselves, your parents, or your relatives.” (Quran 4:135).

Another passage states, “O Believers! Be steadfast in your devotion to God and bear true witness. Never let your hard feelings against anyone lead you to deviate from justice. Be just, for it is closer to piety.” (5:8).

Here is the resolution from the Quran of the perennial conflict between self-interest and justice. Be just, even if it is against your narrowly defined self-interest or of those very close to you. Ignorant people think they are protecting their self-interest by being unjust to others. Their decision to be just or unjust may be based on a cold calculation of self-interest.

But true faith in God elevates one beyond that narrow-mindedness. These passages remind us that the real protector of interests of all people is God and He will protect us when we follow His command to be just. The justice demanded by Islam permits no favouritism.

That is why the Prophet was told, “If you judge, you shall judge them with justice” (5:42) and “We have revealed the Scripture to you with the truth so that you can judge between people according to what God has inspired you” (4:105).

Moreover, the Prophet was sent as an impartial judge – “Say (O Prophet): I believe in the Scripture, which God has sent down, and I am commanded to judge justly between you…” (42:15).

The Quran views itself as a scripture devoted mainly to laying down the principles of faith and justice. It demands that justice be met for all, and that it is an inherent right of all human beings under shariah.

For these reasons, experts of fiqh (jurisprudence) have established that the non-Muslim citizens of a Muslim nation cannot be denied justice as enshrined in the Quran; they are to be incorporated into the Islamic rules that pertain to the safety and indemnity of life, reputation and property, though they are permitted to practice their religious rituals.

The scholars of fiqh have concluded that these rulings apply to all nations under Islamic hegemony; and followers of all faiths, as a matter of fact to all humanity (in such domain).

In this regard, the jurists have stipulated that non-Muslim citizens are accountable for the details of the shariah.

This is the agreed-upon position adopted by the vast majority of scholars such as Imam al-Shafi’ie, Malik, Ahmad ibn Hanbal and it is also espoused by a group of principal Hanafi jurists such as Al-Sarakhsi, Al-Karkhi and Al-Jassas.

By incorporating the non-Muslims citizens or residents into the Islamic rules, they are protected under the covenant extended to them since the shariah does not confine itself to giving rights to Muslims only.

One of its salient features is that non-Muslims share many of these rights. As a matter of fact, the general principle is that non-Muslim citizens have the same rights and obligations as Muslims.

The distinguished theologian, Abu Bakr al-Baqillani held that jurists generally agreed that the message of the Creator included non-Muslims as parts of its audience. Like the Muslims, the non-Muslims are commanded to acknowledge God and the veracity of His messengers that ultimately upholds the universalist ethos of the divine message.

The learned professor argued that when God commands people to pray and to avoid things that are prohibited, God addresses all of humanity and not just Muslims. Hence – the Islamic penal code, when implemented in an Islamic country, is not just for Muslims but is applicable to all.

In this sense, God’s message which is mercy-centric must be understood as universally accessible and thereby knowable by all.

Can’t pick and choose

Furthermore, the isolated view which Hadi has chosen in depriving the non-Muslims from enjoying their rights in the shariah is an anomalous one if not weak as it involves the forbidden practice of talfiq which is not only invalid but also frowned-upon. [Talfiq is to join between the positions of more than one school of thought, or mazhab, so that the resulting amalgam would be unacceptable according to all mazhabs].

Renowned jurists such as Al-Hafiz al-Iraqi and Ibn al-Solah have recorded the consensus if the scholars, or ijma, that it is not permissible to judge by other than the strongest position in a mazhab (school of thought) and Imam al-Subki has explicitly stated at length in several places in his Fatawi considering it to be a violation of what God has revealed for the Almighty has made it obligatory for qualified jurists to adopt the position for which the evidence is the strongest and has made it obligatory for laymen (non-jurists) to follow the ijtihad (independent reasoning) of qualified jurists in all works that are personally obligatory.

The corollary to this discourse is that Islamic penal code is one part of a holistic system; the shariah is considered an interdependent whole, and any infraction constituted a breaking of the shariah as a whole because Islam envisions a comprehensive system of values for society.

Not just laws, but in terms of obligations to God, obligations to humanity and obligations to the Islamic nation. In such settings, hudud is just one aspect, the extreme end that provides for punishments for the most egregious of offences.

In such a system, hudud would have the capacity to achieve its goals, which include justice and deterrence of crimes.

Shariah is holistic

But what PAS is proposing instead is to lift one part of the whole and import it in our current, non-autocratic state and claim that it will achieve justice.

To take one aspect of Islamic law and to ram it into the current system would not do justice to hudud and the shariah as a whole. Hudud ought to be actualised only in a state where all the institutions of the state are in accordance with the shariah.

PAS’s version of the shariah is also capricious if not selective by its exclusion of the death penalty.

This one sacrilegious act of PAS dissolves the sacred connection that subsists between all the divine precepts and the obligation which PAS is under to obey, and thus casts off in effect its allegiance to God.

For, if God should be obeyed in any one instance, He should be obeyed in all, as the authority and reason of obedience are the same in every case; he therefore who deliberately breaks one of the shariah precepts is, in effect, if not in fact, guilty of the whole. One portion of the law is as much binding as another, and if a person violates any one plain commandment, he sets at nought the authority of God.

This is a simple dictum which is everywhere recognised.

A person who has stolen a pencil is held to be a lawbreaker, no matter in how many other respects the law is kept by the person. Such an offender is condemned by the law.

He cannot plead his obedience to the law in other things as a reason why he should not be punished for this offence.

But however upright he may have been in general, even though it may have been through a long life, the law holds him to be an offender and censures him. He is as really condemned, and as much thrown from the protection of law, as though he had violated every command. So of murder, arson, treason, or any other crime.

The law judges a person for the crime committed in this specific case, and he cannot plead in justification of it that he has been obedient in other things.

Perhaps, we should be reminded that cherry-picking the sacred texts be they the Quran or Hadith is a blameworthy act; the very traits of treacherous Jews which the Quran has condemned, “You believe in one part of the Scripture and reject the other! Those who behave in this way shall reap disgrace in this world and severe punishment on the Day of Resurrection. God is not unaware of things that you do.”

Therefore, it is not permitted to be selective of what is accepted or rejected from Islam. The divine message must be accepted in its entirety. Any arbitrary and selective division of the general of shariah is bound to harm the spirit and structure of the shariah and would be tantamount to injustice, the opposite aim of what hudud should achieve.

There would be crimes committed jointly by Muslims and non-Muslims but the former would be subjected to heavier penalties compared with the latter. These scenarios pose a great challenge to our existing constitutional jurisprudence. It also involves issues of double jeopardy and issues of compelling non-Muslims to attend the shariah court for trials of Islamic law when the shariah court in Malaysia has absolutely no jurisdiction over non-Muslims.

Instead of achieving justice, PAS’s scheme would instead create inequality and breed injustice. In any case, Muslims have a responsibility to speak out against the mutilation of Islamic law that has resulted in gross abuses of human rights and tarnished the sacral character of Islam.
The shariah has a clear purpose and goal in mind concerning criminal punishment.

The exercise of medieval jurisprudence in a way unintended by the Law-giver is a violation and destruction of the rubrics of the shariah, which none of us should accept.

Nurul Haq Shahrir is a member of a panel on Islamic law transformation under Majlis Dakwah Negara, the government’s top council for the propagation of Islam. The views in this articles are his own and do not represent Majlis Dakwah Negara or the organisations he has been involved in, past or present.