Monday, 5 February 2018

Characteristics of Hudud, The Islamic Criminal Law/sharia

By: Hafiz Firdaus Abdullah1
N.B: Please comment if you discovered any error in translation !
 
Hudud is one of the important rulings in Islamic shari’ah. It must be uphold and carried out to whatever extent is possible in all Muslim countries, and Muslims must be at peace with it.
I believe the statement above is a known fact to all Muslims. However, the real picture of hudud is still vague to them. 

 Through this article, I will try to explain the basics of hudud in a brief and simple manner. I will emphasize on the characteristics of hudud, so that Muslims and non-Muslims will be able to know and understand it better. At the same time, I will try to add or squeeze in a few explanations about a few baffling aspects of hudud that are usually misunderstood. 

Simply, hudud is executing a sentence to a crime where its form and amount has been stated by Allah in the Qur’an and Rasulullah in the hadith, where the type of crime and ways to prove it has also been fixed by Allah and Rasulullah.Crimes that fall into the category of hudud are apostasy, premarital sex, adultery, sex with the same gender (gays and lesbians) and stealing.
In Islamic fiqh, the sentence to a crime is divided into three categories:
  1. Hudud, as mentioned above.
  2. Qishash, which is a sentence that is the same as the crime committed. Qishash typically refers to a crime that is committed on the human soul and body. If someone injured the hand of another, then the qishash ruling would be injuring the hand of the offender also. However, the one injured has the choice to either carry out the verdict, ask for monetary compensation, or forgive the one who inflicted the injury.
  3. Takzir, which is a sentence to a crime where its form or amount is not stated by Allah or Rasulullah. Sometimes the form and amount is stated, but it is not fixed. Amendments can be made by the judge base on factors of the crime and the criminal, case to case. Takzir is also used for crimes not mentioned by Allah and Rasulullah, or for hudud crimes that are proven in a different way. For example, proving a rape case using a DNA test or proving a swindling case by balancing the companies account.
Characteristics of hudud.
Now I will lay down the basic characteristics of Hudud.

Hudud’s nature is to deter.
The main objective of hudud is not to punish, but to deter man from committing crime. To achieve this objective, hudud is daunting and intimidating, so that man will be frightened of the crime and will stay away from it. This is mentioned by Allah: “These are the limits (hudud) set by Allah, so near them not.” [Surah al-Baqarah, verse 187]
Therefore, if some say that hudud is harsh, then we respond by saying: “True!” To this answer, one must add the explanation that the main objective in hudud is not to punish, but to restrain and deter man from committing crime and offence. 

Hudud does not fall upon those who are insane, ignorant and confused.
Once a Muslim man went to see the Rasulullah in a mosque and said: “O Rasulullah! I have committed adultery.” Rasulullah turned away from the man until the man confessed four times. Then the Prophet called him and asked: “Are you mad?” The man replied: “No.” “Are you married?” The man replied: “Yes.” The Prophet then said: “Take him and stone him.” [Shahih al-Bukhari, hadith no: 6815]
In another narration, Rasulullah asked: “Maybe you just kissed or touched or looked?” [Shahih al-Bukhari, hadith no: 6824]
Based on the questions that Rasulullah asked, it is clear that the mental status of the person must be determined first. Then, verify if the person really knows what is meant by adultery, in order to avoid any confusion.
Based on the questions, it can be concluded that a person who commits a crime when he himself cannot control his own mind, he is exempted from hudud. Other examples besides this are ignorance, confused, young age (children) and asleep.
It is mentioned in some narrations that ‘Umar al-Khatab, the second caliph of Islam did not sentence hudud law on those who committed adultery or premarital sex, because of their ignorance of the crime. 

Hudud ruling only falls on offences done publicly.
Rasulullah said: “Do not come near evil that has been forbidden by Allah, who so ever has, then he should conceal it with Allah’s veil and repent to Allah. This is because whoever does evil in the open and we came to know about it, we will sentence punishment that has been stated by Allah.” [al-Mustadrak of al-Hakim, hadith no: 7615 and it is graded shahih by him and agreed by al-Zahabi]
Besides that, together we should know that in order to sentence hudud, the accuser (plaintiff) must bring forth the number of witnesses required. If the requirements for the witness are not fulfilled, then the accuser himself will be punished. This is, again, to demonstrate that hudud sentences only fall on crimes done publicly and that there are people witnessing it.
Furthermore, by referring to the hadith about how Rasulullah turned away four times from the man who came and confessed to adultery, it can be concluded that sinning is something that has happened in Rasulullah’s time but he did not attempt to spy or scrutinize those who were suspected of it. This is parallel with what he said: “A leader, if he spies for the faults of his people, it would mean that he is destroying them”. [Sunan Abu Daud, hadith no: 4889 and graded shahih by al-Albani]
Rasulullah turned away from the man showing that he does not like to hear confessions of those who commit adultery. In other words, something that has occurred in privacy let it remain hidden. Rasulullah said: “......whoever who has done it, he should conceal it with Allah’s veil.....” It is not encouraged for those who commit offences to go and admit it to the authorities. Instead he should repent, as stated in the continuation of the above mentioned hadith: “..... he should conceal it with Allah’s veil and repent to Allah.”
Back to the case of the man who confessed to adultery to the Prophet, it is said that while being stoned, he ran away because he could not stand the pain. One of the companions of the Prophet chased him and hit him to death using a camel bone. When this event was told to the Prophet, he said: “Why did you not leave the man, maybe he has repent and Allah accepted his repentance.” [Sunan Abu Daud, hadith no: 4419 and graded hasan by al-Albani]
Whoever knows of a crime, he is not encouraged to go and report it to the authorities. Instead, he should go and give advice and counsel those who commit the crime. Rasulullah said: “Whoever covers (a crime) of a Muslim then Allah will cover him in this world and the hereafter.” [Sunan Ibn Majah, hadith no: 2078 and graded shahih by al-Albani]
The Prophet also said: “Forgive hudud crime that has happened between you because if the hudud crime reaches me, is a must for it to be punished.” [Sunan Abu Daud, hadith no: 4376 and graded shahih by al-Albani]
In another narration he said: “Who so ever commits the sins (syirk, stealing and adultery) and is punished for it, then the punishment nullifies the sins for them. And who so ever commits the sins and Allah covers it, then it depends on Allah to pardon them or punish them.” [Shahih al-Bukhari, hadith no: 6784]
To pardon or to punish? Allah, the Most Gracious, Most Merciful would pardon them. The following hadith explains: “Who so ever sins in this world by committing sin and is punished for it, then Allah is Most Just from multiplying the punishment on His servants. And who so ever sins in this world and Allah conceals it, then Allah is Most Noble from inflicting punishment on something that He has pardoned.”[Musnad Ahmad, hadith no: 775 and graded hasan by Syu‘aib al-Arna’uth]

The accused is allowed to defend himself
Rasulullah once said: “Verily, I am only a man. If you bring to me your cases, it could be that one among you can defend himself better than the rest, until I give a decision based on what I have heard. Whoever that (I gave the wrong verdict) till I gave to him what really belongs to another, then do not take it, for what you are taking is a part of the fire of hell.” [Shahih al-Bukhari, hadith no: 7169]
The above-mentioned hadith explains that the accused can defend himself by testifying. Maybe he’s ignorant, maybe he’s confused, maybe he stole because of certain dire circumstances, maybe he killed as an act of self defence and maybe the witnesses are purposely plotting against him and so on. Also based on this hadith emerge defence attorneys, where those accused and do not know how to defend themselves can ask someone else to do so. 

Punishment is only sentenced on the accused if there is no doubts
In a hadith it is narrated: “Avoid from giving hudud ruling as far as you can avoid it.” [Sunan Ibn Majah, hadith no: 2545] It is also said: “Impel hudud law that is based on doubts.” [Bulugh al-Maram, hadith no: 1047]
These hadith is famous among the companions of the Prophet that al-Hafiz Ibn Hajar al-‘Asqalani said in his work Talkish al-Habir, takhrej no: 1755: “It has been narrated by more than one companions (of the Prophet)...”
Even though the degree of the above hadiths is week, its meaning is true and the Muslim scholars have collectively agreed that hudud punishment is not given if the case is vague and doubtful. Imam Ibn al-Munzir said: “The scholars have collectively agreed that hudud law is not accepted based on doubts.” [Stated by ‘Abdullah bin Abdul Rahman al-Bassam in Taudih al-Ahkam min Bulugh al-Maram, volume 6, page 247.]
This characteristic has been taken by the conventional judicial system of today, where the plaintiff must prove without any doubts that the accused is guilty. Whereas the defender must prove that the evidence is vague and doubtful. If doubts still exist in any of the sides, sentence does not fall on the accused. 

Hudud punishment is physical
The biggest difference between hudud punishment and conventional punishment is that hudud punishment is physical, like whipping, cutting of the hand, exile and death. While in conventional punishment, the criminal usually gets sentenced to prison. Sometimes whipping or strokes of rotan is added to the prison sentence, but it is not usual. The big difference between these two styles of punishment is:
  1. Physical punishment really gives a big impact and influence on the criminal, whereas prison just eases and comforts them. A criminal would be happy to enter prison, for he obtains shelter and a place to live in, clothes, food and prison mates to socialize with. This is all one big luxury compared to physical punishment.
Furthermore, I once read in a report that some prisoners, once they finish their sentence in prison, commit other crimes as soon as possible so that they can go to prison again. This is because outside prison, he does not have a house to live in, no toilets, no food, no clothes and no one to socialize and make friends with. He is much better of living in prison. That is why to make him eligible for prison, he commits new crime.

  1. Physical punishment does not require much cost. The person who whips or cut of hands requires only a small payment or maybe none at all. This is far different from the prison system. I once read in a local newspaper that the cost for maintaining prisons and prisoners is a few million ringgits.
  2. Physical punishment really terrifies people and this helps in deterring them from committing an offence or crime. Prison is not scary at all, in fact it’s as I mentioned above, and in a way it invites people to commit crime.
Based on this, if a new crime or offence is committed that has not been mentioned by Allah or Rasulullah 1400 years ago, the punishment that will be given would be in the form of physical punishment as well.
Some mock and taunt saying that physical punishment is barbaric. We answer: “Yes! It is.” But imagine if you or someone you love is a victim of a crime. You will definitely agree to the physical punishment and not send the criminal on a ‘holiday’ in prison.
The punishment is lessened for the weak
Even though hudud is physical, it does not mean that it is the same for all humanity who have different physical capabilities. The elderly for example will have a lesser form of punishment. During the time of Rasulullah, there was once a small and weak man who committed adultery. When the case was brought to Rasulullah, he ordered the man to be whipped a hundred times. To this decision, the companions said:
“O Rasulullah! Verily, this man is very weak to be given such a punishment, for if we were to whip him a hundred times, we would kill him.” The Prophet answered: “Take a date branch that has 100 stalks on it and whip him only once with it. After that free him.” [Musnad Ahmad, hadith no: 21935 and graded shahih by Syu‘aib al-Arna’uth]
As it can be seen, physical punishment is only lessened based on the person’s physical capabilities. Factors such as ranks, lineage or wealth cannot be used to reduce a hudud ruling. Again during the time of the Prophet, it was asked that someone caught stealing is lessened the punishment. To this request Rasulullah answered:
“Verily the people before you were destroyed for doing hudud on the poor and excluding the nobles. For my soul in His hands, if Fathimah (the daughter of the Prophet) committed the same crime (stealing), her hand will be cut of too.” [Shahih al-Bukhari, hadith no: 6787]
Anti-hudud group vs Hududiyyah
When we talk about hudud, normally we will encounter two different groups of people:
The first is the Anti-hudud Group. They are those who do not understand hudud and so reject it. To them, if hudud is carried out in a country, many of the citizens will be seen walking around with missing hands and scarred backs.
The second group is the Hududiyyah. They are those who do not understand hudud, but want it carried out very much. To them, an Islamic country is a country where its main responsibility is to cut off the hands of thieves and whip adulterous people.
If both groups are given good explanations about hudud and its characteristics, they will definitely change their views and stand regarding hudud. In hudud, justice and blessings that is the basis of Islam can clearly be seen. A country that carries out hudud, will be peaceful, just and blessed. Peaceful because hudud means to deter people from committing crimes and so the rate of crimes will fall. Just and blessed because hudud first observes the reason for the crime and the condition of the person when committing the crime.
Hudud if compared to conventional punishment used nowadays, has many similarities. The main difference is only in the form of punishment, for hudud carries out physical punishment and conventional methods imprison people. When I emphasize on the similarity, I do not mean that Muslims should think that conventional punishment is enough and be happy with it. But what I am highlighting is:
  1. Conventional judicial system used nowadays that is considered modern and updated, is actually taken from the Islamic system. Imagine when man 1400 years ago lived in ignorant times and dark ages, Islam has put down the basis for the punishment of a crime. Therefore it is oppression on oneself when the Muslims community do not follow hudud and instead take the conventional ways, which is plagiarized from Islamic heritage.
  2. Those who choose conventional punishment, they actually do not understand hudud. Furthermore, they have are petrified of it due to the Hududiyyah group. With good explanations by us, who understand, they will slowly change their perspective on hudud and will support it.
Through this short and simple article, let us become those who understand hudud and its characteristics. Take this article as a beginning for us to learn more about hudud. The motive for this should be true justice and blessing of all mankind, not for certain religion or political parties. If you find in you, characteristics of the Anti-hudud group or the Hududdiyyah, then let us together try to change and correct ourselves.

1 Originally writen in Bahasa Malaysia, translated by Aliah bt Abdul Rahman (aar_aliahar@yahoo.com) and Rowina Lynne Murray bt. Jeffery Murray (rowinalynne@yahoo.com). Edited by Mohd. Khairul b. Mohamed (khairul@microlink.com.my).
 

No comments:

Post a Comment