Under hudud and ‘qisas’, the rich can buy their freedom, Bar Council chief says

(Malay Mail Online) – Enforcing hudud in Kelantan will bring about “unimaginable injustices” as the “qisas” law of retaliation, which is included in the Islamic penal code, would mean the rich can buy their way out of punishment, Bar Council president Christopher Leong said.

Under the “qisas” law of retaliation, Muslims accused of injuring another will be punished by having the same act done to them or be given an option of forgiveness from the victim or family, on condition of reparation, which means monetary compensation in the modern day.

“So you have a system, those who can afford it, the rich, are able to buy or pay off justice,” he said.

“In a system where your victims or offenders are not of the same race, is that fair? That some offenders can afford buy of justice and some can’t,” Leong added today at a roundtable discussion on hudud by the Global Movements of Moderates (GMM).

Agreeing with Leong, Universiti Teknologi Mara (UiTM) legal advisor Emeritus Professor Datuk Dr Shad Saleem Faruqi said the Islamic law, based on its implementation in other countries, have been misused by the “rich”.

“Khalwat never happens in five-star hotels, it only happens at cheap, budget hotels and in cars parked at the side of the road in Taman Jaya.

“People go to five-star hotels to read the Bible and the Quran?” he said in jest, pointing out that the existing Shariah laws have been applied selectively.

After coming under heavy scrutiny, PAS recently agreed to delay tabling two private members’ bills needed to pave way for the enforcement of hudud in Kelantan.

The Islamist party conceded to a proposed bi-partisan technical committee, comprising of members of the state and the federal government, to study the implementation of the Islamic penal code.

Leong said there is no “100 per cent” perfect criminal justice system, which he explained was also one of the reasons why the Bar is opposed to the death penalty.

“It is the common denominator for all against death penalty… mistakes are made, and (the) death penalty irreversible.

“You have punishment under hudud irreversible, chopping off one’s hand for example, is the end and so if he is stoned to death, it is irreversible,” he said.

“How can you have hudud with severity of punishment and the environment still susceptible to corruption and selective prosecution?” noted Leong.

He added that creating a parallel criminal justice system will also raise discrepancies, tension, “injustices you can’t begin to unravel”, referring to the problems in custodial battles between Muslim and non-Muslim parents in case of unilateral child conversions.

Leong said with the existing complications of Malaysia’s dual legal systems where Muslims are bound by both civil and shariah laws, the latter of which does not apply to or recognise non-Muslims, it was enough reason to question if hudud is suitable for Malaysia.

The Islamic criminal justice system that Kelantan hopes to enforce by next year comprises both “hudud” ― which covers six offences: apostasy, illicit sexual relations, alcohol consumption, making unproven accusations of illicit sex, theft and robbery ― as well as “qisas” ― which covers murder and causing hurt.

Illicit sexual relations include adultery, premarital sex, rape and sodomy, some of which carries a punishment of 100 lashes.

Adulterers are subject to death by stoning, while Kelantan will leave it to the courts to decide on the method of execution for murderers and Muslims who renounce their religion.

Muslims found guilty of rape or sodomy will be subject to the same punishment as adultery of premarital sex, either death by stoning or 100 lashes, depending on their marital status.

Muslims who imbibe alcohol will be whipped 80 times.

Muslims convicted of robbery could have a hand and a foot amputated, at the discretion of the court, while robbery that results in a killing can be punished with a death sentence.

Muslim thieves will have their hand, usually the right, chopped off.

GMM will compile the feedback from the roundtable discussion today for the perusal of the technical committee.