Of hudud, Hadi Awang and hududsters

The misunderstanding about syariah and hudud to me stems from the failure of Muslims and its ulamas as a whole.

COMMENT

By Art Harun

Hudud has become a popular topic again thanks to the re-emergence of PAS President Hadi Awang’s proposed private bill that seeks to increase the power of the Syariah Courts to impose any kind of Syariah punishments excluding the death penalty.

I am not going to comment on the merits or demerits of that private bill. Lawyer-activist Siti Kasim has made her stance known in more ways than one (finger) and I shall leave it at that.

I however, wish to ask a simple question.

The question is: “Why is it that to some people – especially Hadi Awang and his band of hududsters – is the syariah all about hudud?”

Every day we recite the Bismillah. “In the name of Allah, the most gracious, the most merciful.”

That’s what we utter repeatedly every day.

However, despite saying that repeatedly every day 24/7, all we talk about is hudud. And when we talk about hudud, we talk about punishments.

So, to most Muslims and hududsters, and not to mention the non-Muslims, Islam equals syariah, syariah equals hudud, and finally hudud equals punishment.

And then it becomes graphic. Punishment equals cutting off hands, stoning to death and beheading.

Then we blame the West and the kafirs for not understanding us Muslims and our religion, Islam. We blame the whole world for Islamophobia.

The misunderstanding about syariah and hudud to me stems from the failure of Muslims and its ulamas as a whole.

It is a failure of branding. Firstly, we brand Islam as syariah. Then we brand syariah as hudud. And we brand hudud as a set of punishments for a set of offences. Then we brand the punishments as cutting off hands and the like.

While doing so, we forget, or completely ignore, all the other aspects of the syariah. Some of us even say that human rights are not applicable to Muslims.

That, in my opinion, is the reason for Islamophobia and the whole misunderstanding about, and of, Islam in contemporary time.

We fail to explain and practice the very phrase that we utter repeatedly every day – “In the name of Allah, the Most Gracious, the Most Merciful”

That, we fail.

In a hadith related by Al-Hakim and As-Suyuti, the Prophet was quoted as saying:

“Refrain from enforcing hudud on Muslims as much as you can. If you find a way out for a Muslim, let him (or her) go, as it is better for the imam (ruler) to wrongly forgive than to wrongly punish.”

How many of you have heard of this hadith when you talk about hudud? I am not surprised if none of you have. That is because people like Hadi and the hududsters would never relate this hadith when they preach about hudud.

I am going to reproduce here, some parts of what Sheikh Yusuf Al-Qaradawi, president of the International Union for Muslim Scholars (IUMS), said in an interview with Al Jazeera on January 2, 2011, about the syariah and hudud.

In the words of Sheikh Yusuf Al-Qaradawi

1. “Shari`ah cannot be divided. It should be dealt with as a whole. In the Quran, out of 6,236 verses, only 10 address the topic of hudud directly. These verses were revealed late during the mission of Prophet Muhammad.

“The hudud laws mentioned in the Quran are four – or five, if one of the qisaas(retaliation) is added. These five hudud address qisaas, adultery, qadhf (false accusation), hirabah (highway robbery) and theft.

“In order to realise the actual volume of hudud compared with the rest of Islam, many scholars divide Islam into creed, acts of worship, morals, manners, and laws. The laws are divided into civil, economic, family, commercial, criminal, constitutional, international relations laws, and so on.

“So, why do people focus only on one part of the criminal law and ignore the rest of Shai`ah and Islam?”

2. “There are clear-cut hudud established by the Quran as mentioned above, with regard to qisaas, qadhf, hirabah, and theft. There are also the zanni (speculative) hudud, which were established by the Sunnah, such as the penalty for drinking wine.

“Some scholars say it is 40 lashes, others say it should be 80 lashes, while some others, like Al-Bukhari and At-Tabari, said there is no penalty for drinking wine but only tazeer (or other less punishment). As for adultery, Sheikh Qaradawi notes that he goes for the last opinion, so the punishment could be whipping, jail or a fine.”

3. “One of the speculative hudud is also the one for apostasy, which was established by the Sunnah. There are many hadiths as well as some references in the Quran on the killing of apostates. However, Umar ibn Al-Khattab asked an apostate to repent. Also, Imam An-Nakhiy and Imam Ath-Thawry are of the opinion that apostates should continuously be asked to repent.”

4. “Moreover, the stoning penalty for a married adulterer was referred to in the Sunnah, not in the Quran.”

5. “The problem is not with the application of hudud, but it has to do with the misapplication of them, that is, applying them without meeting their conditions.

6. “The Prophet Muhammad prepared society before applying hudud. He applied the whole of Islam. He performed the prayers, collected zakat from the rich, and distributed it among the poor, stressing the importance of social solidarity.

“He also provided jobs for the unemployed. Generally speaking, he made an Islamic life. In that case, the theft penalty could be applied.”

7. “But how can hudud be applied when people are unemployed, hungry, sick, orphaned, and homeless? Islam should be established in such aspects first, and then if someone steals, such an act of theft is because of the evil inside him or her.”

8. “Umar ibn Al-Khattab did so by suspending the theft penalty during the Starvation Year, as people were stealing because of need and hunger. When a rich man came to Umar complaining that his slaves were stealing, after pondering and investigating the matter and knowing that this master had not met the needs of his slaves, Umar told him, ‘Go meet their needs first or I’ll cut your hands off’.

“So, social justice should be applied, and people’s needs should be met, and conditions should be considered in order to apply hudud.”

9. “Otherwise, hudud may be used as a pretext to oppress people by their rulers.”

10. “Moreover, sometimes some individuals steal millions and billions and hudud is not applied to them as they are politically empowered and rich. At the same time, hudud is applied to the weak and the poor. Here, imbalance takes place.”

11. “Another point is that when someone commits a crime related to hudud, the authorities should not start with applying the penalty, but any other way out should be sought. A rule, which Muslims agree upon, says, ‘Let doubt suspend hudud’.

“Many jurists widen the range of doubt based on the following hadith related by Al-Hakim and As-Suyuti: ‘Refrain from enforcing hudud on Muslims as much as you can. If you find a way out for a Muslim, let him (or her) go, as it is better for the imam (ruler) to wrongly forgive than to wrongly punish’.”

12. “Islam is not keen on punishing people. Punishments are for abnormal people, who constitute a small portion of society.”

13. “Islam’s philosophy of applying hudud with regard to adultery, for example, does not have to do with the act of adultery itself – which is a forbidden act of course due to many reasons.

“That philosophy rather has to do with the doer’s committing his or her act publicly, as it is known that the adultery penalty is applied only when four just people (with acceptable testimony) witness the evil act of illegal sexual intercourse, or when the adulterer confesses four times before a judge that he or she has committed that act.

“In that case, the defendant should be informed of the penalty before he or she confesses.

“Moreover, the four witnesses must be just, and the judge must make sure that they are not lying to him. If any of these conditions are not met, the penalty cannot be applied.

“In that case, the adulterer may have the chance to repent without receiving the penalty.”

14. “Another condition for applying hudud is the removal of all dubieties. For example, if someone steals an amount of money from Bayt Al-Mal (the Treasury), he or she should not receive the prescribed penalty (namely, cutting off his/her hand). This is because some scholars say that the doer of this act already has a share of that public money as he or she is one of the Muslims.

“However, if the penalty of theft is not applied, another lesser punishment should be inflicted on the doer.”

15. “However, when all dubieties are removed, there still remain conditions for hudud to be applied:

i) A defendant committing a crime by free will while knowing that this act or crime is illegal;
ii) A defendant publicly committing a crime or confessing to committing it.”

16. “The majority of secular laws are in accordance with Shariah laws, except for penal laws (those relating to hudud and qisaas).”

17. “Hudud may be suspended until there is an Islamic life comprehensively established, with all conditions guaranteed. If these conditions are met in a certain case, hudud must be applied.”

18. “There are countries that apply hudud nowadays like Saudi Arabia, Iran, and Sudan. But the question is, do they apply hudud properly? This needs to be discussed in detail.”

And that is what Sheikh Yusuf said in the Al Jazeera interview.

In conclusion, I repeat my question:

“Why is it that to some people – especially Hadi Awang and his band of hududsters – the syariah is all about hudud?”

Art Harun is a prominent lawyer and social activist.