CHALLENGES TO THE APPLICATION OF ḤUDŪD

IN MALAYSIA: AN EVALUATIVE STUDY

BY

MUHAMMAD SAUD IQBAL

A dissertation submitted in fulfilment of the requirement for

the degree of Master of Islamic Revealed Knowledge and

Heritage (Fiqh and Usul al-Fiqh)

Kulliyah of Islamic Revealed Knowledge

and Human Sciences

International Islamic University Malaysia

SEPTEMBER 2018

iii

ABSTRACT

The ḥudūd crimes and punishments in Islamic criminal law may be the most

contentious aspects of Islamic law today. While many Muslim majority countries may

want to implement the ḥudūd, they are also modern constitutional nation states in a

global environment dominated by the human rights movement. This study evaluates

the major methodological, constitutional, legislative and human rights challenges

facing ḥudūd implementation in Malaysia, a nation that has Islamic law embedded in

its pre-colonial history, constitution and legal system. The study uses comparative

analysis to contrast the ḥudūd crimes and punishments in classical fiqh with insights

from contemporary jurists via adopting a qualitative approach. It then makes three

arguments for the relevance of ḥudūd in Malaysia today: the many centuries-old roots

and practice of Islamic law before colonial arrival; the exclusive status of Islamic law

in the Malaysian Constitution which has only increased with the 1988 amendment of

Article 121; and the right of the Malaysian people to exercise their self-determination

democratically to legislate laws they want. The study then presents seven ḥudūd-

implementation models based on methodological variances in the 1) number of

crimes, 2) penalty discretion, 3) juristic preference, 4) penal code, 5) acceptance of

circumstantial evidence, 6) gender-based testimonial competence and 7) religion-

based testimonial competence. The study reccomends that the Four Undisputed Ḥudūd

crimes of zinā (fornication and adultery), qadhf (false accusation of zinā), sariqah

(theft) and ḥirabah (robbery) be considered ḥudūd crimes, while the Disputed Ḥudūd

crimes of shurb (drinking alcohol) and baghi (rebellion) be tried via taʿzīr

(discretionary punishments) and irtidād (apostasy) be decriminalized and addressed

via counselling. The next section discusses legislative challenges facing ḥudūd

implementation in Malaysia and remedying them via methods like, infusing the

current Penal Code with Islamic principles, reenacting an Islamic Penal Code or

adopting a taʿzīr-based penal code. The study ends with evaluating human rights

challenges beginning with the theoretical differences between Islamic values and

human rights while exploring the practical necessity to adopt a penal code that

addresses the penological needs of a society to reduce crime rates. In Malaysia where

there is an ever-increasing demand for Islamic law, this study offers insights and

recommendations to navigate these challenges.

iv

البحث ملخص ياأ ثرثر قرو الإسرمية الجنريات في الحروو والعقربات ئماالجر الشر عع في جرو أ تمثر يباوربًا ثعضرياأ تعرو صباهر ديا و أ وهر الحروو تطبةر تربا الوول الإسرمية ين ًوعو حين في .الةبام

الوحروت تنرياق الوياسر هره ًيالمةًّريا حكمدريا في الإنسريا حقربا ًلر تعومرو سروبايع الوياسر .يريالةيت في الحروو لوطبةر الإنسريانة والحقبا الوش ععة الوسوبايع المندجة الكبرى

لمم ير حجر ثرم تنرنة تم المعسر عن ال قدريا وينظرباي فقدةًّريا الحروو تبروث صونرنة ة للمميايسر الطباع الويايعخ ثو أ : ييالةيت في الحوو الحيالر ثانةأريا ا سروعمياي خربال قبر الشرً الري القرباانين لوشر ع يمق اطةًّريا ينره تق عر مميايسر في المريالةي الوسروباي في للشر عع الخياهر ين حةر المندجة ال و ثسياس ًل الحوو لوطبة نمياذج سبع الوياس تع ض ثم .ع عوونهيا ر ريا تلق عنر القبربال العقربات قريانبا ال قدر الو ضرة العقباصر تقروع الجر ائم ًرو

الوياسر هره يرن عُسرونو الوعن ًل القيائم الشديا ور يا الجنس ًل القيائم الشديا ثيريا تًوبيايهريا حروو أا والح اصر السر ق القره، الري، وهر ًلةدريا المونرياع غه الَأيصع الحوو تلإيشريا ال يعيالج وعوم تلوعهع تعياقب والبغ الخم ش ب فد ًلةديا؛ المونياع الحوو يرن ويعيالجودريا يريالةيت في الحروو تن ةره تبااجر الري الوشر ععة الوحروت عنرياق الورياي والقسرم قريانبا تمثةر إًريا ثو الإسرمية تلمبريا الحرياي العقربات قريانبا تيوعرو يثر وسريائ خرمل

صوقةرةم البحر عنودر .الوعرهع ًلر القريائم العقربات قريانبا تبري ثو الإسرمي العقربات الإنسيا وحقبا الإسمية القةم صين الأسياسة الخمفيا ين صو أا الإنسيانة الحقبا تحوت

.المجومر في الجر ائم يعو ععيالج اله العقبات قيانبا لوبي العملة الض وي اسوكشيا، ي الوياسر هره تقرومم حةر الإسرمية الشر عع ًلر تسروم اي يوياعرو طلرب عباجرو يريالةيت في .الوحوت هه لمبااجد وتباهةيا فكيايأاثَ

v

APPROVAL PAGE

I certify that I have supervised and read this study and that in my opinion, it conforms

to acceptable standards of scholarly presentation and is fully adequate, in scope and

quality, as a thesis for the degree of Master of Islamic Revealed Knowledge and

Heritage in Fiqh and Usul al-Fiqh.

……………………………..

Luqman Zakariyah

Supervisor

……………………………..

Mek Wok Mahmud

Co-Supervisor

I certify that I have read this study and that in my opinion it conforms to acceptable

standards of scholarly presentation and is fully adequate, in scope and quality, as a

thesis for the degree of Master of Islamic Revealed Knowledge and Heritage in Fiqh

and Usul al-Fiqh.

……………………………..

Syed Sikandar Shah Haneef

Examiner

This thesis was submitted to the Department of Fiqh and Usul al-Fiqh and is accepted

as a fulfilment of the requirement for the degree of Master of Islamic Revealed

Knowledge and Heritage in Fiqh and Usul al-Fiqh.

……………………………..

Abdul Bari Awang

Head, Department of Fiqh

and Usul al-Fiqh

This thesis was submitted to the Kulliyyah of Fiqh and Usul al-Fiqh and is accepted as

a fulfilment of the requirement for the degree of Master of Islamic Revealed

Knowledge and Heritage in Fiqh and Usul al-Fiqh.

……………………………..

Mohammad Abdul Quayum

Abdus Salam

Dean, Kulliyyah of Islamic

Revealed Knowledge and

Human Sciences

vi

DECLARATION

I hereby declare that this dissertation is the result of my own investigations, except

where otherwise stated. I also declare that it has not been previously or concurrently

submitted as a whole for any other degrees at IIUM or other institutions.

Muhammad Saud Iqbal

Signature ........................................................... Date .........................................

vii

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

DECLARATION OF COPYRIGHT AND AFFIRMATION OF

FAIR USE OF UNPUBLISHED RESEARCH

CHALLENGES TO THE APPLICATION OF ḤUDŪD IN

MALAYSIA: AN EVALUATIVE STUDY

I declare that the copyright holders of this dissertation are jointly owned by the

student and IIUM.

Copyright © 2018 Muhammad Saud Iqbal and International Islamic University Malaysia.

All rights reserved.

No part of this unpublished research may be reproduced, stored in a retrieval

system, or transmitted, in any form or by any means, electronic, mechanical,

photocopying, recording or otherwise without prior written permission of the

copyright holder except as provided below

1. Any material contained in or derived from this unpublished research

may be used by others in their writing with due acknowledgement.

2. IIUM or its library will have the right to make and transmit copies (print

or electronic) for institutional and academic purposes.

3. The IIUM library will have the right to make, store in a retrieved system

and supply copies of this unpublished research if requested by other

universities and research libraries.

By signing this form, I acknowledged that I have read and understand the IIUM

Intellectual Property Right and Commercialization policy.

Affirmed by Muhammad Saud Iqbal

……..…………………… ………………………..

Signature Date

viii

This work is dedicated to my father and mother

to whose courage, sacrifice and patience I will forever be indebted.

ix

ACKNOWLEDGEMENTS

Over the years, it is perhaps the virtue of gratitude that I have come to find most

consequential. And none deserves gratitude more than the One in whose sincere

pursuit everything we call life unveils itself. My journey to seek Truth has taken me

on paths I could not have imagined, only to be rejuvenated with perspective that has

given my life meaning. And for that I cannot be thankful enough.

Perhaps the most deserving of my gratitude are also the most surprising. They

are the few dozen odd mavericks in a dozen countries who instead of walking through

life with their eyes closed gathered the courage to open them to study and think for

themselves. Over the last decade, they spoke their minds to me, in cafes, airports,

mosques, churches, bus stops, universities and streets; spurring me on a journey of

intellectual discovery that blew life into me. Knowingly or unknowingly they changed

everything in my life in ways they will never truly appreciate, but for which I will,

nonetheless, always appreciate them.

I am grateful to Prof. Ibrahim Zein who not only encouraged me to pursue a

path less travelled but actively helped me on it, especially at the early stages of my

Master’s program when his support made all the difference.

I am thankful to Prof. Syed Sikandar and Prof. Amanullah for their guidance

and words of encouragement along this journey, especially when the going got tough.

Perhaps they will never realize the true effect of their words and example on me.

I am grateful to my supervisor Dr. Luqman Zakariyah for his guidance during

my research, especially his prompt and critical feedback. I benefited greatly from his

academic standards and enthusiasm for Islamic law. I must also acknowledge the

assistance of Dr. Mek Wok whose feedback on the Malaysian affairs was insightful.

Their words and actions throughout this study brought out a different side of me and

for that, I am grateful.

Virtues are often inconsequential as they struggle to make it out of the books

and into our actions. This, however, has not been my experience with Prof. Zaleha

Kamaruddin and Prof. Abdul Aziz Berghout, the Rector and Deputy Rector of IIUM.

My interactions with them have truly impacted me in ways books could not. It is their

support and pragmatic problem-solving approach to leadership, for which I am

grateful, and which rejuvenates life in to the oft-neglected platitudes that echo across

mosques as sermons.

Most of all, I owe everything in life to my beloved father, Dr. Saud Iqbal, and

mother Mahjabeen Iqbal, who have not only encouraged me on my unconventional

pursuits in life, but unwaveringly stood up against the world for me. They are my

foundation through the storm of life and I will forever be indebted to them for their

patience and sacrifice for me and my sister. Like everything else I accomplish in this

short but eventful life, this work is dedicated to them.

x

TABLE OF CONTENTS

Abstract .................................................................................................................... iii Abstract in Arabic .................................................................................................... iv

Approval Page .......................................................................................................... v Declaration ............................................................................................................... vi Copyright Page ......................................................................................................... vii Dedication ................................................................................................................ viii Acknowledgements .................................................................................................. iix

List of Figures .......................................................................................................... xii

Transliteration Table ................................................................................................ xiii

CHAPTER ONE: INTRODUCTION ................................................................. 1 1.1 Background of the Study ........................................................................ 1 1.2 Statement of the Problem........................................................................ 6 1.3 Research Questions ................................................................................. 7

1.4 Research Objectives................................................................................ 8 1.5 Significance of the Research .................................................................. 8

1.6 Scope of Research................................................................................... 9 1.7 Methodology of Research ....................................................................... 10

1.8 Literature Review ................................................................................... 11

CHAPTER TWO: ḤUDŪD CRIMES AND PUNISHMENTS IN

CLASSICAL FIQH ............................................................................................... 17 2.1 Linguistic and Juristic meaning of ḥudūd ............................................... 17

2.1.1 The linguistic meaning of ḥudūd.................................................. 17

2.1.2 The Maliki defination of ḥudūd ................................................... 21

2.1.3 The Ḥanafi defination of ḥudūd ................................................... 21

2.1.4 The Shaf’i defination on ḥudūd.................................................... 22

2.1.5 The Ḥanbali defination of ḥudūd ................................................. 22

2.2 Justice in Islamic Penal Philosophy ........................................................ 23 2.3 Punishment in Islām ............................................................................... 30

2.4 Punishment in Classical Fiqh ................................................................. 37

2.3.1 Retributory Punishment (Qiṣāṣ) .................................................... 38

2.3.2 Discretionary Punishments (Taʿzīr) .............................................. 39

2.3.3 Fixed Punishments (Ḥudūd) .......................................................... 39

2.5 Ḥudūd Offenses in Classical Fiqh .......................................................... 40

2.5.1 The Undisputed Ḥudūd ................................................................. 44 2.5.1.1 Zinā (Fornication) .............................................................. 45 2.5.1.2 Qadhf (False Accusation of Zinā) ..................................... 48 2.5.1.3 Sariqah (Theft) .................................................................. 50 2.5.1.4 Ḥirabah (Robbery) ............................................................ 53

2.5.2 The Disputed Ḥudūd ..................................................................... 54

2.5.2.1 Shurb (Drinking Intoxicants) ............................................. 55

2.5.2.2 Irtidād (Apostasy) ............................................................. 57 2.5.2.3 Baghi (Theft) ..................................................................... 62

2.6 Conclusion ....................................................................................... 64

xi

CHAPTER THREE: HISTORICAL AND LEGAL DEVELOPMENT OF

ḤUDŪD IN MALAYSIA ....................................................................................... 65

3.1 Development of Islamic Criminal Law in Malaysia ............................... 65 3.1.1 Islamic Law and Malay customs in Malaysia ............................... 66 3.1.2 Islamic Law before the Colonial Era ............................................ 67

3.1.3 European Arrival and its Effect on Islamic Law in Malaya ......... 69 3.1.4 Islamic Law and the Federal Constitution of Malaysia ................ 72

3.2 Understanding Ḥudūd in the Malaysian context .................................... 73

3.3 Malaysia: Secular or Islamic state? ........................................................ 75 3.3.1 Secular Aspects of Malaysia’s Constituion and Adminstration.... 76 3.3.2 Islamic Aspects of Malaysia’s Constituion and Adminstration .... 81

3.4 The Kelantan Ḥudūd Bill of 1993 .......................................................... 89

3.5 Conclusion .............................................................................................. 92

CHAPTER FOUR: CHALLENGES TO ḤUDŪD IMPLEMENTATION

IN MALAYSIA ...................................................................................................... 93 4.1 Methodological Challenges: Classification of Ḥudūd-Implementation

Models ................................................................................................... 94

4.1.1 Number of Crimes: Four Undisputed vs. Seven Classical ........... 96 4.1.2 Penalty Classification: Taʿzīr-based vs. Ḥudūd-based. ............... 101

4.1.3 Jurisprudence: Madhab-specific vs. Maqāṣid-based ................... 104 4.1.4 Penal Code: Islamized vs. Muslim-specific ................................. 108 4.1.5 Circumstantial Evidence: Qarinah Acceptance vs. Qarinah

Rejection ...................................................................................... 111

4.1.6 Religious Testimonial Competence: Muslim Males only vs.

Muslims and Non-Muslims ................................................................... 116 4.1.7 Gender Testimonial Competence: Muslim males only vs.

Muslim Males and Females ......................................................... 118

4.1.8 Conclusion ................................................................................... 119

4.2 Constitutional and Legislative Challenges ............................................. 120 4.2.1 Islamic law is a state subject ........................................................ 121 4.2.2 Inconsistency in procedural Islamic Laws at the state and

federal levels ................................................................................ 122 4.2.3 Limits on the Sharīʿah Court system in Malaysia ....................... 124

4.3 Human Rights Challenges ...................................................................... 127 4.3.1 Ḥudūd punishments and Human Rights ....................................... 129 4.3.2 Are Human Rights Universal?. .................................................... 132 4.3.3 Social Needs of Muslim States .................................................... 134 4.3.4 Sovereignty of Muslim States ...................................................... 137

4.3.5 Addressing Genuine Human Rights Concerns ............................. 139

CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS ............... 145 5.1 Conclusion .............................................................................................. 145 5.2 Recommendations................................................................................... 147

BIBLIOGRAPHY .................................................................................................. 151

xii

LIST OF FIGURES

Figure No. Page No.

2.1 Categories of ḥukm taklifi 30

2.2 Types of crimes and punishments in classical fiqh 38

2.3 Categorization of ḥudūd crimes based on level of agreement 44

4.0 Policymaker Decision chart for Ḥudūd-Implementation 95

4.1 Number of Crimes: Ḥudūd-Implementation Classification 96

4.2 Penalty Classification: Ḥudūd-Implementation Classification 101

4.3 Juristic Preference: Ḥudūd-Implementation Classification 105

4.4 Penal Code: Ḥudūd-Implementation Classification 109

4.5 Circumstantial Evidence: Ḥudūd-Implementation Classification 112

4.6 Gender-based Testimonial Competence: Ḥudūd-Implementation 116

Classification

4.7 Religion-based Testimonial Competence: Ḥudūd-Implementation 118

Classification

xiii

TRANSLITERATION TABLE

1

CHAPTER ONE

INTRODUCTION

1.1 BACKGROUND OF THE STUDY

It can be argued that there are few words that have featured in a more negative fashion

on international news headlines in the last two decades than the word Sharīʿah. Since

the September 11, 2001 attacks in the United States, the western media has captivated

mass media with negative messaging towards Islam and Muslims. 1 They have

relentlessly sensationalized the word Sharīʿah in a manner suggesting it to be

primitive, harsh, inhumane, barbaric and unacceptable to civilized society.

Populations in the West are constantly warned by 24-hour news channels about

“Creeping Sharia”, the alleged rise of Muslim extremists who want to implement their

so-called brutal Sharīʿah law upon the western world and reverse a millennium of

human progress. 2 This perception of Sharīʿah was certainly not helped by the rise of

the self-proclaimed Islamic State of Iraq and Syria (ISIS) in 2014. The group

uninhibitedly released professionally produced high definition pictures and videos of

floggings, amputations, stonings, crucifixions, executions and other punishments, all

performed in front of large crowds. 3 Almost singlehandedly, ISIS brought to the

forefront the discussion of Islamic criminal law and its application in the 21st century.

1 American Sociological Association, “Negative messages about Muslims in Media”,

<http://www.asanet.org/press-center/press-releases/study-shows-increase-negative-messages-about-

muslims-media-american-sociological-association> (accessed 17 September 2017) 2 Mathew Schmitz, “Fears of ‘Creeping Sharia’”, National Review

<http://www.nationalreview.com/article/302280> (accessed 15 September, 2017) 3 Tom Wyke, “ISIS release horrific photos of a man having his hand amputated for theft”, Mail Online,

<http://www.dailymail.co.uk/news/article-2880945/ISIS-release-shocking-photos-man-having-hand-

amputated-theft-Assad-spy-crucified-streets-Syria.html> (accessed 21 August, 2017)

2

Many secular and modernist Muslims, far from having any qualms, actively

advocate relegating Islamic criminal law to the annals of history. Devout Muslims on

the other hand find themselves advocating for the implementation of what they

consider to be a divine system of justice in a world whose norms are increasingly

unfavorable to it. The Islamic resurgence of the late 20th century that swept many

parts of the Muslim world has resulted in a growing demand for the implementation of

Islamic laws in Muslim countries, particularly laws related to crimes and modern

economics.4

For the average devout Muslim, it would seem that the commandments to pray

(ṣalāt) or give alms (zakāt) hold the same weight as the commandments to punish

those who commit fornication (zinā) or theft (sariqah), simply by virtue of having the

same divine source - the Qurʾān. Needless to say, implementation of the latter

commandments (punishment for zinā & sariqah) in the 21st century brings forth

legitimate problems that mere sloganeering will not resolve. This matter involves

national constitutions, international agreements, and modern conceptions of human

rights all within the contemporary paradigm of a multi-cultural, multi-racial, multi-

religious nation state whose citizens are supposed to be equal before the law.

While the word Sharīʿah may evoke a negative image in the minds of many

non-Muslims and even Muslims for whom it is only a news headline, the history of

Islamic law in Malaysia goes back centuries, well before colonial times. Amongst the

most politicized matters in Malaysia has been the modern implementation of the

criminal law based on Sharīʿah – the ḥudūd.5 The ḥudūd are understood to be the

fixed punishments for specific crimes prescribed in the Qurʾān and ḥadīth as part of

4 Fikret Karcic, “Applying the Sharīʿah in Modern Societies: Main Developments and Issues”, Islamic

Studies, vol. 40, no. 2 (2001): 216. 5 Ahmad Fauzi Abdul Hamid, “The Hudud Controversy in Malaysia: Religious Probity or Political

expediency?” Southeast Asian Affairs, no. 1 (2015): 206.

3

the penal code of Sharīʿah law.6 Malaysian political parties on both sides of the

ḥudūd law implementation debate have thrown around the term ḥudūd for decades,

especially since the 1993 Ḥudūd Bill was passed in the state of Kelantan.7 Extensive

coverage of this matter from both electronic and print media has ensured that ḥudūd

find a prominent place in the average Malaysian mind. The 2017 debate over the

RUU355 bill in the Malaysian Parliament, intended to amend the Syariah Courts

(Criminal Jurisdiction) Act 1965 to grant Sharīʿah courts more jurisdiction, sparked

headlines, statements and demonstrations from both sides of the public debate.8

Media coverage of the ḥudūd may have made the word synonymous with

Islamic criminal law for the Malaysian public but contrary to popular belief, ḥudūd are

only a fraction of the Islamic penal system. 9 Qiṣāṣ cases (exact retaliation for

homicide and injury) are also part of Islamic criminal law while taʿzīr (discretionary

judicial punishment) cases form the majority of cases Islamic courts have dealt with

historically. This is due to the simple fact that most crimes do not fall under ḥudūd

because the ḥudūd crimes are no more than six in number. 10 Add to that the high

evidentiary requirements required to prove ḥudūd crimes in courts resulting in many

ḥudūd crimes being sentenced under taʿzīr. Despite this, it would appear that there is a

reductionist attitude to conflate all of Islamic criminal law with just the ḥudūd crimes

and punishments.

6 Anwarullah, The Criminal Law of Islam (Kuala Lumpur: A. S. Noordeen, 1997), 112. 7 Mohammad Hashim Kamali, “Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan,

Malaysia”, Arab Law Quarterly vol. 13, no. 3 (1998), 203. 8 Free Malaysia Today, “Another counter rally, same day as PAS’ Sharīʿah law rally”,

<http://www.freemalaysiatoday.com/category/nation/2017/01/18/another-counter-rally-same-day-as-

pas-ruu355-rally/> (accessed 14 August, 2017) 9 See Muhammad Abu Zahrah, al-Jarimah wa’l-Uqubah fi’l-Fiqh al-Islami (Cairo:

Dar al Fikr al-‘Arabi). 10 Mohamed Salim El-Awa, Punishment in Islamic Law: A Comparative Study (Indianapolis: American

Trust Publications, 1982).

4

Amongst contemporary scholars and legal experts, the subject of ḥudūd is no

less settled. There is disagreement ranging from fundamentals such as the number of

ḥudūd crimes,11 the law of evidence relating them,12 whether they apply to religious

minorities in an Islamic state, the validity of testimonies of women and non-Muslims

in ḥudūd cases,13 to whether the ḥudūd are even compatible with modern conceptions

of human rights and nation states with a constitutional framework. Furthermore, what

role do penological justifications play, if any, in the application of ḥudūd? Is there

something universal and empirically timeless about the effectiveness of ḥudūd

punishments (such as amputations and floggings) irrespective of what sociological

conditions they are applied in or are they being advocated purely because they are

considered to be divine commandments?

For the common person, the first thing that they may think of when hearing the

term ḥudūd is thieves having their hands amputated or adulterers being stoned to

death. Interestingly though, some studies have shown that by in large, a majority of

Malaysian Muslims and a sizable percentage of non-Muslim Malaysians believe that

the implementation of Islamic law is relevant in contemporary Malaysia.14

While even non-Muslim majority countries like India have provisions for

Muslim personal law within their legal system, this still raises questions about the role

of Islamic law in the public domain. More specifically for our purposes, Islamic

criminal law in contemporary Malaysia. The challenges of applying Islamic criminal

punishments to non-Muslims who may not be willing to accept the Muslim rationale

11 Abd al-Qadir Awdah, al-Tashri’ al-Jina’i al-Islami, vol. 1 (Beirut: Dar al Fikr al-‘Arabi), 7. 12 Sayed Sikandar Shah Haneef, “Modern Means of Proof: Legal Basis for its Accommodation in

Islamic Law”, Arab Law Quarterly, 20.4 (2006): 335. 13 Muhammad Ata Alsid Sidahmad, The Hudud, Al Basheer Publications Hardback (1995), 187. 14 M. A. Kasmo and et al, “The Attitude of Malaysia Toward the Islamic Law: A Comparative Study

across the Society”, Mediterranean Journal of Social Sciences (2015): 110.

5

for ḥudūd is a real one, not to mention a clear clash of Sharīʿah courts with

constitutional jurisdiction of the Malaysian Penal Code.15 Excluding non-Muslims

from ḥudūd punishments would be even more challenging - running parallel criminal

justice systems that hand out different punishments for the same crimes (like theft and

robbery), purely based on the perpetrator’s religious beliefs.

There is still a deeper question that needs to be asked here. Media coverage

may have made the term ḥudūd popular in Malaysian public discourse, but what does

ḥudūd mean to people? Irrespective of whether they have a favorable or unfavorable

view of ḥudūd, what shapes the average Malaysian’s perception of ḥudūd? To what

extent do they appreciate legitimate challenges to the application of ḥudūd in

contemporary Malaysia? Are they even aware of the implications of applying ḥudūd

laws in modern Malaysia or do they have an oversimplified view of ḥudūd as just

another divine commandment?

Amidst all the sloganeering at political rallies, an issue like ḥudūd exposes two

very different visions of Malaysia - one increasingly secular and one increasingly

Islamic. It is therefore important to understand the challenges to application of ḥudūd

in Malaysia, a matter that strikes at the very heart of Malaysia’s unique status as a

mostly secular federation with a special constitutional status for Islam as its official

religion.16

Numerous questions have been raised by opponents of Islamic law. In the

wake of the increasing influence of Islamic law in Malaysia some have suggested that

Islamic law is foreign to Malaysia while others have questioned the appropriateness of

15 Ahmad Fauzi Abdul Hamid, “Implementing Islamic Law within a Modern Constitutional

Framework”, Islamic Studies, vol. 48, no. 2 (2009): 173. 16 Shad Saleem Faruqi, “The Malaysian Constitution, the Islamic State and Hudud Laws”,

Islam in Southeast Asia: Political, Social and Strategic Challenges for the 21st Century (2005): 268.

6

punishments such as stoning, amputation, crucifixion and other ḥudūd punishments in

a modern criminal justice system. The use of ḥudūd to score political points has been

noted as a recurrent theme in the ḥudūd debate in Malaysia.17 This research studies the

challenges to the application of ḥudūd in Malaysia to gain a better understanding of

what lies ahead for both those who want to see it implemented and those who strongly

oppose it.

1.2 STATEMENT OF THE PROBLEM

The subject of ḥudūd is one of the most controversial topics related to Islam today.

Many criticisms of Sharīʿah law focus disproportionately on the ḥudūd punishments.

But Malaysians, especially in Kelantan, have been consistently demanding the

implementation of ḥudūd for nearly three decades now. Practically however, there are

still many methodological, legislative, constitutional, and human rights challenges to

application of ḥudūd in the current Malaysian legal framework.

The ḥudūd, unlike other religious obligations like ṣalāt or zakāt, are part of

public law being applied in the context of the modern nation state. This raises many

questions about their implementation, especially given that Malaysia has a significant

non-Muslim minority. Will the ḥudūd apply to Malaysian non-Muslims? Will

Malaysian non-Muslims accept the application of ḥudūd upon them? If not, then will

Malaysia have a separate penal code based upon religion?

Most importantly, what does the application of ḥudūd laws look like in a

constitutional nation state? Will the Sharīʿah courts accept female and non-Muslim

testimony in ḥudūd cases? Should modern forms of evidence be acceptable in ḥudūd

cases or will they be only restricted to confessions and witness testimony? Should

17 See Ahmad Fauzi Abdul Hamid, “The Hudud Controversy in Malaysia: Religious Probity or Political

Expediency”, Southeast Asian Affairs, 2015.

7

apostasy be punished using the death penalty while the Malaysian constitution

guarantees freedom of religion and what human rights challenges would this pose,

both locally and internationally? What is the place of Islamic criminal law in a country

where two-fifths of the population is not Muslim? These are some of the pertinent

challenges in the path of ḥudūd application in Malaysia.

Ḥudūd are a highly politicized issue in Malaysia evoking strong emotions on

both sides of the debate leading to further distortion regarding the true meaning and

implementation of ḥudūd. In addition, there are aspects of Islamic criminal law and

ḥudūd already under the jurisdiction of Sharīʿah courts operational in Malaysia today.

Most of the studies done in this area in the past have focused on either the theoretical

juristic framework of ḥudūd or the political controversy surrounding this issue in

Malaysia. This research studies the methodological, constitutional, legislative and

human rights challenges to the application of ḥudūd in Malaysia to gain a better

understanding of problems and prospects facing both its proponents and opponents.

1.3 RESEARCH QUESTIONS

This study aims to answer the following questions:

1. What are the major differences in the conception of ḥudūd crimes and

punishments by classical and contemporary scholars?

2. What is the historical and current position of Islamic law and ḥudūd in

Malaysia, constitutionally and administratively?

3. What are major challenges to the implementation of ḥudūd law in Malaysia?

4. What are steps that can be taken if implementation of ḥudūd is to become a

reality in Malaysia?

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1.4 RESEARCH OBJECTIVES

The following are the objectives of this study:

1. To contrast differences in how ḥudūd crimes and punishments are

conceptualized by classical and contemporary scholars.

2. To establish the historical and current position of Islamic law and ḥudūd in

Malaysia, constitutionally and administratively.

3. To evaluate the major challenges to the implementation of ḥudūd law in

Malaysia.

4. To suggest possible steps that can be taken if implementation of ḥudūd is to

become a reality in Malaysia

1.5 SIGNIFICANCE OF THE RESEARCH

For decades now, ḥudūd has and continues to dominate Malaysian public discourse.

There are no signs that the relevance of ḥudūd will die out in the near future.

Irrespective of the legal ramifications of ḥudūd laws in Malaysia in the future, it is

imperative to understand the practical challenges to the implementation of ḥudūd laws

in Malaysia.

1. This study will uncover challenges to ḥudūd application in Malaysia and

propose possible solutions, from the perspective of its proponents and

opponents.

2. It will establish the history of Islamic law and ḥudūd in Malaysia starting

from the arrival of Islam to modern times, establishing it as indigenous and

not foreign law.

9

3. This research will study the status of Islamic law in the Malaysian

constitution and how it has been practically applied by successive Malaysian

governments, establishing the role of Islam in the Malaysian public life.

4. The results of this study will also help clarify common misconceptions about

Islamic law in general, especially with regards to its implementation in the

modern world.

5. Any empowerment of the Malaysian Sharia courts in the future will have to

be complemented with a government public outreach to educate the masses

about ḥudūd. The findings of this study can be used to educate the public

about ḥudūd in Malaysia.

6. Apart from being relevant to Malaysians, findings of the study can be, to a

large degree, generalized to Muslim majority countries from other parts of

the world. Thus, the study will be relevant to those trying to understand the

implementation of ḥudūd in other countries as well.

7. The findings of the research will also be relevant in highlighting key areas

that need to be addressed to educate Muslims and non-Muslims about

Islamic criminal law.

1.6 SCOPE OF THE RESEARCH

This study focuses on three major themes. The first part of this research studies the

understanding of crime, punishment and ḥudūd in classical fiqh based on the opinions

of major scholars in each madhab, including the founding jurists themselves. These

views are then contrasted with contemporary Muslim jurists, with a special focus on

highlighting modern challenges faced in implementing ḥudūd.

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The second part of this study elaborates on the historical development of

Islamic law in Malaysia going back centuries to the advent of Islam on Malaysian

shores, followed by its diminished role during colonial times, leading up to the

creation of the Malaysian Constitution, up to current times. The status of Islamic law

in the Malaysian constitution is elaborated on adequately understand the prospects of

ḥudūd implementation as part of the Malaysian legal system.

The last part of the study builds upon the formulation of ḥudūd and its legacy

in Malaysia as established in the first two chapters, to lay out major methodological,

constitutional, legislative, political, educational and human rights challenges faced by

the implementation of ḥudūd in Malaysia.

1.7 METHODOLOGY OF THE RESEARCH

The researcher uses a qualitative method of research to undertake this study. The

nature of the research objectives entails that relevant literature on the subject at hand

be critically evaluated to identify areas of challenges. Library research is the primary

mode of inquiry to understand the conception of classical jurists on the subject of

punishment and ḥudūd in Islamic law.

Content analysis of original sources is performed to extract the opinions of

classical scholars of the four main madhāhib along with other major jurists which are

compared. These range from ḥudūd terms related to crimes (such as sariqah, shurb,

zinā etc) and their associated punishments (such as qat’ yad, jald, rajm etc).

To understand the conception of contemporary scholars on the subject of

ḥudūd, literature available in the form of online academic journals and books is

compiled and critiqued. A diverse range of contemporary views is evaluated ranging

11

from those who advocate the wholesale implementation of the classical understand of

ḥudūd to those who call for a serious reconstruction of ḥudūd for modern times.

The study employs textual analysis of relevant verses from the Qurʾān

and Sunnah to establish both the linguistic and juristic understanding of the

word ḥudūd in light of the opinions of major jurists across Muslim history.

These constructs are then contrasted with their position given the framework

of modern constitutional nation states.

Prominent legal and historical commentaries on relevant articles of the Federal

Constitution of Malaysia are also critically evaluated to understand the historical

context and intended meaning of relevant parts of this important document.

Competing views of whether the constitution should be understood more in secular or

Islamic terms are also evaluated and their practical implementation also studied in this

qualitative analysis.

Treatises on the major challenges to the implementation of ḥudūd in

contemporary society by contemporary scholars are analyzed as well. A political and

historical analysis of the ḥudūd implementation debate, especially in view of the 1993

Ḥudūd Bill of Kelantan, and other relevant state and federal legislation is extensively

analyzed to establish challenges and prospects of ḥudūd implementation in Malaysia.

1.8 LITERATURE REVIEW

This study is being conducted in a context where aspects of ḥudūd and Islamic

criminal law are already a part of the legal system in Malaysia and are not just

religious concepts. This is something that is not true for Muslim citizens of secular

western non-Muslim majority countries for whom the subject of ḥudūd is a purely

intellectual and devoid of any practical application in their countries’ secular legal

12

system. On the other hand, authoritarian and religiously homogenous countries like

Saudi Arabia and Brunei were able to implement ḥudūd laws with relative ease via

royal decrees. Public opinion on the subject played little role there due to the form of

government in place.

The Malaysian context is unique in that the people’s opinion on ḥudūd matters

due to the democratic system of government in practice. Simultaneously, Malaysia is

religiously non-homogenous with a sizable non-Muslim population who may not be

open to accepting the ḥudūd. These and other factors not directly related to religion

but rather politics inform the perception of ḥudūd in Malaysia.

There are concrete challenges to the implementation of ḥudūd in modern

Malaysia. To what extent does the average Malaysian appreciate these? Even if one is

to grant the very difficult pre-requisite of garnering enough public support and

political will to implement ḥudūd in Malaysia, we are far from solving the problem.

The researcher thought it necessary to understand the methodological, constitutional,

legislative ad human rights challenges to ḥudūd implementation in a multi-racial,

multi-religious, multi-cultural society governed by secular and democratic principles

in the context of 21st century conceptions of human rights.

This study benefits from Mohamad Salim El-Awa’s “Punishment in Islamic

Law: A Comparative Study”,18 one of the most cited works in Islamic Criminal law in

recent decades. The author delineates the details of the classical model of Islamic

criminal law of ḥudūd, qiṣāṣ and taʿzīr, both in terms of their historical development

as juristic constructs as well as accompanying that with pragmatic commentary

regarding their contemporary relevance. The work was however focused more on the

18 Mohamed Salim El-Awa, Punishment in Islamic Law: A Comparative Study (Indianapolis:

American Trust Publications, 1982).