HUDUD has always been controversial – both for the Muslims and non-Muslim. The fact that it could controversial to non-Muslim is easier to fathom, but to be controversial for the Muslims is somewhat an obfuscation of issues. In this article, I will try to give the subject some lights (hopefully with no controversies!!!). I will do this by laying down the facts, and then the confusions.
FACT ONE: ISLAMIC LAW IS FIRST TO THE PERSON, THEN ONLY TO THE STATE
One thing that is important to understand clearly – that Islamic Shari’ah (or the Islamic Law) is first – directed to a person, in particular those who profess Islamic faith.For examples, Solah (or 5 times obligatory prayers) are incumbent upon each Muslim to perform them, similarly the Zakah (the obligatory Alms giving), the Hajj (the Pilgrimage) – all must be performed by the “person”. Also in the same way “eating pork” or “drinking wine” are Haram (not permissible) to all Muslims; and bad behaviors such as “cheating”, “lying”, “taking bribes”, practicing “Riba”( Usury) – are all prohibited.
The question is, what if a Muslim do not perform those obligations, and eat pork, lied, cheat, taking bribes, and practicing Riba? First and foremost, he is still a Muslim, at least by definition and would remain so until he declare to be an apostate; and surely he is committing grave sins, and his rewards/punishment will be upon him on the Day of the Judgement. Which means, he is erred and committed sins against Allah – which so far is a “personal affair” between him and God (Allah). The fact is also clear that he is not acting in accordance to the Shari’ah (Islamic laws).
The only issue that these will become a “State Matter”, when the State is an “Islamic State”, which means the political system, the legal system, as well as the social system is based on the Islamic definitions (and for that matter the State’s Constitutions must reflect all of these and other facets of Islamic State). When such is the case, then these matters could no longer be a “personal matter” but also a State matter. How the State should deal with these issues are in what been said as “the Hudud”. Which basically means that now religion should be observed as State as well as a person (in this case a Muslim).
But first and foremost, if there are no such Islamic State, then whatever we talk about Shari’ah generally, it would remain within personal domain and not the State domain, as the case is in Malaysia today. The Shari’ah Court is another matter that will be explained later.
FACT TWO: ISLAMIC STATE (AD DAULAH ISLAMIAH) IS UNDEFINED
Even though Islamic States of the past, such as during the Islamic Caliphate times, it was defined – but within today’s environment and situation, a proper definition of Islamic State is not-available.Even for those who studied the “Islamic Empires” of the past, would come to clear idea that these were rulers and states (or empires) that were Muslim and ruled and organized the states based on Islamic ideas. In fact it were transformed from the various stages of developments and took characters of its own. If we took two examples – of the Kanun (Laws) of Sulaiman Al Kanuni (or Magnificent) of the Ottoman (around 1500s) and Aurangzeb’s Islamic Codifications (around late 1600s) of Moghul in India – were in fact rose to the needs of their empires (and societies) at the time. Off course a lot could be learnt from it; but they are far from perfect examples to take lead from.
So what definition of Ad Daulah Islamiah (or Islamic State) that we want to talk about here? Except for the ideals that we have in our mind?
FACT THREE: SHARI’AH AND HUDUD COULD ONLY BE IMPLEMENTED WITH QUALIFIED QADHIS AND ‘ULAMA
Most importantly, at least from Islamic history, that the implementation of Shari’ah Laws and Hudud Laws, could only be done through a body of Judges (or Qudha, plural of Qadhi), whose scholarly capabilities on Islamic Jurisprudence, are beyond any reasonable doubts. In the same way, Common Laws could be read by qualified/learned judges as well as based on Case Laws. In the case of Malaysia, could we comfortably say that we do have such people readily available? (See my article of ‘Ulama Criterion as well Scholars and ‘Ulama). My personal experience at least confirms that even the most learned of the Shari’ah Court in Malaysia today, would fail many tests.
So without such preparations – the issues of Shari’ah Law and Hudud is at best, academic and political polemics.
FACT FOUR: ISLAM IS TO EMPHASIZED ON PERSONAL CHARACTER FIRST AND FOREMOST
The unfortunate lost message is Islam is to build characters (Akhlaq) as the first and foremost. The prior focus is on the self purification, development of one’s family and surrounding people. These forms the basis of Islamic society – Baldatun Toyyibatun – the Good Society. If we have the Muslims in Malaysia, say 50% of them are behaving personally to conform to the Islamic Shari’ah as well as having strong and good Islamic character (Khulq) in their daily lives – then we are getting nearer to the “Maqasid/objectives” of the Shari’ah. Probably then the issue of having a greater and wider implementation would become right. And furthermore, the level of Islamic knowledge is widespread, ‘Ulama are well abound, and so on – then the necessary requirements would be present.
But the reality on the ground is different – take the most glaring example of the State of Kelantan – where I dare not say 30% of the Muslims – would pass the above description that I said above. The public are as “ignorant” as public in other states in Malaysia about Islam. The development of Islamic knowledge is meager – just show me an example of established institutions of Islamic learning in Kelantan that would shine above elsewhere? The Pondok system is in total disarray, and doubtful to produce shcolars (‘Ulama). What we have off course abundance of “preachers” or “Ustazs” giving Islamic preaching (not teaching).
CONFUSION ONE: SHARI’AH COURTS OF MALAYSIA IS LIMITED
It is well established that the Shari’ah Courts (and existing Shari’ah enactments) are within the Federal Constitution – with defined limited scope and functions (i.e. in matters of marriage, death, etc.). It was never meant to implement “Shari’ah” or “Hudud” by any means, due to its own definitions and scope under the Federal Laws.
Furthermore, in some cases, a Muslim could well choose to be ruled under Shari’ah court or the Civil Courts, if all parties agreed to it. In another word, everyone could by-pass the Shari’ah Court if they want to (note that it must be agreed by all parties). However, the loop holes provided room for abuse of laws and court process, since when someone loose say in one court, could go to the other court to redress. And with confidence, I would say, today, there are thousands of cases which stuck in “no mans land” between these two court systems. Furthermore, it delayed decisions as the interlocutory problems could never be resolved and remains in never-never land.
CONFUSION TWO: SHARI’AH AND HUDUD LAWS ARE AMBIGOUS TO THE NON-MUSLIMS
The positions of non-Muslims in Malaysia, if ever Shari’ah or Hudud are defined is as much ambiguous, since they are neither “Harbi” (at war) nor “Zimmi” (subjected under protection) – so many Shari’ah definitions and edicts are quite unclear to non-Muslim. Therefore, the fear by non-Muslims, at least based on their readings or impression of the Islamic Empires of the past, and also by wrong message of Islam of today, are well justified. Brushing them aside is always wrong.
In fact, this is contrary to the historical facts – for example, under Ottoman Empire, they ruled quite a lot of areas which are at times almost 100% non-Muslims. The method of treatments of non-Muslims within Islamic State are well defined and they did prosper well. Similar examples could also be taken from the Islamic Empires in Spain (Cordoba).
But unfortunately, the Muslims of Malaysia failed to raise this issues in proper manner – and instead instill the culture of enmity, as opposed to “blessings for the people” (rahmatan lil-‘alamien).
CONFUSION THREE: POLITICS OF IDENTITY
The bottom line for the Islamists in Malaysia today, is the struggle for Islamic identity. They want to be identified with Islam and it’s glorious past. This is off course should be recommended. But they mistaken the issue of struggle for identity with Islamic faith and Islamic teaching itself. “Waiyyah Islamiah” that is Islamic awareness is what they are fighting for; it is like someone struggling to be recognized and accepted. It is also I would consider post-independence struggle among most Muslim communities of the World in their fervor of returning to Islam. With this, they are “forcing” others to accept their identity and hence “rights” to practice Islam. What they failed to see is that Islam should and must be practiced by individuals first, and that should be the first step of Islamic identity, if they would. They should live as shining examples of Muslim people to others, which then they would become beacon of the society for standing up to truth, character, and being among the best human beings – first and foremost. On these counts, many Islamists failed miserably.
Unless and until we could clear the facts and confusions as mentioned above, the current issues about Hudud – I would say, is nothing more than a “crisis of identity” among the Islamists; and as it enters the realms of politics, it gains another unwanted momentum that could even smear the Truth of Islam as faith.