Hudud: the lies people tell regarding rape

Ros Shahira, The Malaysian Times

I refer to news written by a journalist from New Straits Times, Nuradilla Noorazam entitled “Conducive  environment needed before hudud can be implemented” (NST, May 7).

Regardless of hundreds news, journals, articles and opinions in New Straits Times, the above-mentioned one grabbed my attention.

Hudud has been the talk of the town since Kelantan passed the Syariah Criminal Code (11) Enactment in 1993 and as a youngster, I was not really interested to think about it.

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

The former forever relies on “It is God’s law and we are duty-bound to follow it”statement while the latter always focuses on the alleged brutality and discrimination of hudud law. These two parties have been playing their roles so well by debating unknowingly which is why I decided to think whether or not hudud should be implemented.

Pure Purpose 

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

As a matter of fact, hudud law 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 religion as well as to protect one’s self, common sense, descendent and property. My curiosity gives me the urge to enquire of several points in respect of hudud implementation.

Firstly, regarding the four Muslim male witnesses required in rape cases that has become the main concern of the society which I myself am certain that it is almost impossible to get four Muslim males eye-witnessing such despicable crime.

I cannot see how this kind of requirement could have emerged at the first place because neither the Holy Quran nor hadith provides such requirement.

The Holy 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 (peace be upon him) did accept women as witnesses in rape cases during the  time of the Prophet (peace be upon him). The Prophet (peace be upon him) never demanded for four Muslim male witnesses to prove rape.

I believe that in these modern days, Islam does 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.

Witnesses

This is also upheld by Ustaz Fathul Bari, a Malaysian Muslim Islamic Scholar and Exco of UMNO Youth.

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

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

Secondly, 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 S.W.T in the Holy 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 for 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.

Different Elements?

When the Prosecution accuses a woman for 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 the rape victim be assumed to have 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 Holy Quran, this punishment is only applicable when one falsely accuses another one for zina – and not rape?

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

Thirdly, zina can also be proven by pregnancy of or birth of a child by a woman not then married and in  relation to married couples, zina may be proven by unrebutted 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 Syariah opinion is that pregnancy is not an admissible as proof of zina because it is merely circumstantial evidence.

When  the Prosecution charges a woman for 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 unrebutted sworn allegation.

The question is simple – how can we tell whether or not such sworn allegation is made  truthfully? Indeed, Allah S.W.T is the All-Knowing but that does not mean we do not have to uphold justice.

We had the Prophet (peace be upon him) back then to supervise and ensure that justice was served. It is so unfortunate that Muslims nowadays do not really practice Islam religion well so how are we going to do to ensure no one is going to misapply hudud law?

To relate all these interrogatories with the first-mentioned news, what people are trying to say is that Malaysia  is yet ready to practice the whole Islamic Criminal Law system due to how untrustworthy people can be and a conducive environment is absolutely needed to implement it.

The fear and anxiety of Malaysians are not exaggerated, it is caused by the worrying levels of corruption in Malaysia itself.

Mohd Amar, as he was representing PAS and the Kelantan Government, gave the analogy of hanging rattan canes on the wall to deter children from wrongdoing.

What I can say is that children and adults are dissimilar; some adults are willing to do anything just to satisfy their personal gross desires.

I strongly believe that Malaysians, particularly Malaysian Muslims, do not reject the implementation of hudud, qisas, diyat and ta’zir. They just want to be assured that the Islamic Criminal Law will not be misused and everyone is equal before the law.

I also ponder if the Islam’s second caliph, Umar al-Khattab’s argument is relevant here – “Hudud could be suspended if the social conditions, social context did not permit its implementation to the detriment of justice and equality”.

I might have overlooked certain points but all these undeniably are the controversial issues raised by the  society. Some points I made herein may or may not be true.

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

Questions also arose as  to execution of punishments where some people do not really get a clear picture on how a punishment will be  executed.

For instance, a person intentionally causes injury to another person’s eye which makes him blind in one eye, does this mean that the former’s eye will be gouged out with a sharp instrument in public?

The answer, as  mentioned by Ustaz Fathul Bari, is in the negative. Instead, the offender will be brought to a hospital and a surgeon will perform an eye-gouging surgery to the offender.

When everything has been made crystal clear, insyaAllah, He will ease everything as His laws are irrefutably  divine.

*Shahira Saida bt. Siron, a third year law student in Universiti Utara Malaysia.