Clarify these points on hudud first

By admin-s Last updated May 12, 2014

I – as a young confused and indecisive citizen – need the concerning party to clarify each and every issue pointed out here.

Ros Shahira

Hudud has been the talk of the town since Kelantan passed the Shariah Criminal Code (II) Enactment in 1993 and as a youngster, I was not really interested in it.

Speaking of hudud, two parties would definitely cross one’s mind vis-a-vis the ones who support its implementation and the ones who oppose it.

The former forever relies on “It is God’s law and we are duty-bound to follow it” while the latter always focuses on the alleged brutality and discrimination of hudud.

These two parties have been playing their roles so well by debating, which led to my thinking about whether or not hudud should be implemented.

What both parties do not truly understand is the pure purpose of hudud, according to the Quran and hadith.

As a matter of fact, hudud is just a branch of Islamic Criminal Law and among others are qisas, diyat and ta’zir. These four branches of law are indeed intended to safeguard Islam as well as to protect one’s self, common sense, descendant and property.

My curiosity gives me the urge to enquire about several points in respect of hudud implementation.

First, regarding the four Muslim male witnesses required in rape cases. I myself am certain that it is almost impossible to get four Muslim males witnessing such despicable crime.

I cannot see how this kind of requirement could have emerged at the first place because neither the Quran nor hadith provides such requirement. The Quran only specifies the requirement of four Muslim male witnesses in cases where a woman is accused of illicit intercourse or adultery in Surah An-Nur.

In fact, the Prophet did accept women as witnesses in rape cases during the time of the Prophet.

He never demanded four Muslim male witnesses to prove rape. I believe that in these modern days, Islam will accept other kinds of evidence, such as recordings from CCTVs, DNA and those being used in the current criminal law system although such evidences may only render the offender guilty under ta’zir.

This is also upheld by Ustaz Fathul Bari, an Islamic scholar and exco of Umno Youth.

The requirement of four Muslim male witnesses, as expressly provided in the Quran, should have been a shield for women from being slandered and should not have been a sword to accuse a woman of zina.

Is not it ironic when Islam itself protects women from any harm but PAS’s hudud shows something contrary?

Second, a woman who complains of being raped but fails to produce four Muslim male witnesses shall be deemed to have committed zina (illicit intercourse or adultery) and qazaf.

Am I the one who is confused or is PAS the one who is actually confused with the true wordings of Allah in the Quran? Let me get this straight – zina and rape carry two different meanings – do not get confused.

Zina is committed voluntarily by parties involved but rape is a non-consensual sexual intercourse.

To charge a woman with zina, four Muslim male witnesses must be produced as mentioned in Surah An-Nur, verse 24:4 and failing to do so will amount to qazaf (accusing someone for zina without producing four Muslim male witnesses), an offence punishable with 80 lashes.

When the prosecution accuses a woman of zina after she fails to prove her rape case, the prosecution is the one who should produce four Muslim male witnesses to prove the alleged zina and if they fail to do so, they are the ones who should be lashed 80 times for committing qazaf. Am I not right?

The rape victim is deemed to have committed zina because of “self-confessed” zina when she fails to prove that she was raped.

Again, how can it be assumed that a rape victim has committed zina when she is trying to say that she was raped without her consent? I do not think I have to repeat the meanings of zina and rape.

How does a rape allegation resemble self-confessed zina when these totally have two different elements? Would not “I was raped” be different with “I committed zina”?

This also leads to another question which is how can a woman be deemed to have committed qazaf and be punished with 80 lashes if she fails to prove her rape case when, according to the true wordings of the Quran, this punishment is only applicable when one falsely accuses another one for zina – and not rape?

I am aware that accusing someone of committing rape without concrete proof is also qazaf but if a woman does that, she can only be punished under ta’zir – and not 80 lashes under hudud.

Third, zina can also be proven by pregnancy of or birth of a child by an unmarried woman and in relation to married couples, zina may be proven by sworn allegation of a person against his or her spouse.

As Pan-Malaysian Islamic Party, I am pretty sure they are all aware that the majority Shariah opinion is that pregnancy is not an admissible as proof of zina because it is merely circumstantial evidence.

When the prosecution charges a woman with zina without four Muslim male witnesses and merely based on her pregnancy, this shows doubted and contestable evidence and when this happens, hudud can be set aside.

At this point, I wonder how the prosecution can possibly prove zina against a woman when the woman herself cannot prove the rape especially if the culprit’s identity is unknown and has yet been caught.

How does one prove zina against a woman when the accuser does not even know the identity of the man who allegedly committed such offence with the woman?

If a married man or woman commits zina, his or her spouse can prove such offence by making a sworn allegation. The question is simple – how can we tell whether or not such sworn allegation is made truthfully?

Indeed, Allah is the All-Knowing but that does not mean we do not have to uphold justice.