10 Misconceptions About Hudud Law

This article is intended to address the common misconceptions that many non-Muslim and Muslim Malaysians have on Hudud Law. Lately, people have become frantic since MP from Marang is about to read and debate a possible amendment in Parliament that would entail a stronger Syariah Court.

I personally believe that non-Muslims have every right to be worried, because it is a matter that is not within their norm. Their worry is only further exacerbated by the self-proclaimed ‘liberal’ media whom are famous for their scare-mongering. I humbly suggest that my fellow Malaysians should seek answers from valid sources like Islamic scholars instead of swaying to the most convenient islamophobic site online.

An introduction

Hudud (حدود ) is derived from its singular form of had (حد) which literally  means “limit” or “restriction”. Hudud is an Islamic concept which prescribes punishments under Islamic law which are mandated and fixed by God.

Very similar to the developments in common law, the discussion on Hudud Law is vast and is contained in a plethora of sources. The major difference between the two legal systems is that, the latter imposes a heightened level of adherence since it connotes a religious obligation rather than a merely moral or civic one.

Hudud Law is archaic because it imposes very harsh punishments

The purpose of an Islamic Legal System of Punishments are depicted as below:

1). To punish those guilty of crimes, thereby acting as purification and reforming them.

2). To act as a deterrent for society from committing crimes.

3). As means of retribution for those who are victims of crimes.

Despite the statement above, punishments are to be prevented as much as possible. Any smidge of evidence that has a possibility of being doubtful will prevent a Hudud Law punishment. Prophet Muhammad (pbuh) would frequently prevent himself to resort to punishment, even when individuals would voluntarily ask for sentencing. It was narrated that the Prophet said, “To free a criminal mistakenly is better than to punish someone innocent mistakenly”.

Aishah (RA) narrated that, “Ward off punishment as much as you can. If you find any way out, then set him free. It is better for an Imam to mistakenly grant forgiveness to a criminal than to mistakenly punish an innocent individual”. Thus, although the punishments area harsh, they are not to be inflicted arbitrarily.

Hudud Law excludes circumstantial evidence

S 46 Kelantan’s Syariah Criminal Code (II) (1993) 2015 provides that, with the exception of syurb (drinking alcohol) and zina (extramarital sex), circumstantial evidence is inadmissible in establishing a Hudud Offence.

The divine nature Hudud requires that if a crime is to be punished, the prosecution must prove definite guilt that is ‘beyond the shadow of doubt’. This is a contrast from its civil law counterpart, ‘beyond reasonable doubt’, which promulgates a lower burden of proof.

That is why circumstantial evidence like fingerprints on a murder weapon are inadmissible to prove an offence that entails a Hudud sentence. Circumstantial evidence is not in themselves sufficient to give 100% certainty of the guilt of the owner of the fingerprints.

Thus, Syarie Courts recognize two methods in the production of the definite proof of guilt : (1) Eye witness testimony; and (2) Confession.

This elevated requirement for Hudud is suitable since it involves a harsher sentence. This is the divine nature Hudud where it requires a higher burden of proof.

S 47 Kelantan’s Syariah Criminal Code (II) (1993) 2015 provides that, where the accused cannot be made liable to a Hudud punishment due to evidence that does not fulfill the conditions required by a Hudud offence, the offender may be punished by a Taazir punishment as the court deems fit where the court shall proceed to pass such punishment if there is sufficient evidence for a Taazir punishment.

This means that if the crime cannot be proven under Hudud, the case will be heard as a Taazir offence where the court has power give any similar sentence, if not the same. This is not a mere option but a standard of procedure. Please note that although circumstantial evidence is not accepted in a Hudud offence, it is still admissible for Taazir offences. Contrary to claims by the majority of the legal profession, circumstantial evidence is in fact admissible in Syariah Courts.

Thus, there will never be cases of criminals escaping punishment on the sole reason that they cannot be punished under Hudud Law.

Hudud Law only accepts “just male adult Muslims” as witnesses

Some might claim that s 41 of Kelantan’s Syariah Criminal Code (II) (1993) 2015 only permits direct evidence from just adult male Muslims. This requirement for witnesses is claimed to be limited to the extreme and bears problematic consequences.

I would submit otherwise. If one looks at s 39(2) of the same Enactment, it states that unless provided otherwise, the Evidence Enactment of the Syariah Court 2002 shall apply.

S 83 of the Evidence Enactment provides that ALL persons CAN provide witness statements when the court deems it to be necessary. This provision includes men, women, minors AND non-Muslims.

Hudud Law requires two or more witnesses for every hudud offence

The testimony of a person who has actually seen the crime took place is valid evidence. This is the case, provided that the witness’ trustworthiness has been proven in a special court specifically to verify the character, memory and intelligence of any witness submitted.

In addition, there cannot only be one witness since that would allow room for deceit and fabrication by a single testimony. In order to curb this problem, Hudud Law requires that the minimum number of witnesses shall be two persons.

If any of the witnesses fails to bring corroborating testimony, or the prosecution cannot provide the minimum number of witnesses, the allegation will fail as a Hudud offence.

The requirement is stricter in the case of zina where the prosecution must bring four witnesses. If the witnesses fail in their testimony or the accuser does not bring four valid witnesses, then the accuser will be subjected to punishment of qadzaf (false accusation). This is intended to prevent any defamatory or libelous statement to be made against a Muslim woman.

A rapist can escape if the victim cannot bring four witnesses

In Islam, rape is NOT the same as zina. The latter is consensual while the former involves force and causing injury. Accordingly, the crime for rape does not require the strict requirement of four male witnesses. The statement of the victim and evidence that can be obtained via a ‘rape kit’ is sufficient to establish a rapist to be guilty. Some Islamic scholars have deem rape to be equated with hirabah (violent robbery) and made a fatwa that rapists should be given the death penalty. Any reasonable person would agree that a violent psychopathic rapist who has no respect for our mothers and sisters should be put to death.

Honestly, the provision for rape under Malaysian Hudud Law is still under developed. But, isn’t the local civil legal system the same? This only entails that we need to make further developments in establishing a legal system, Syarie and civil, that can comprehensively protect rape victims.

Reverting back to intent of this article, a rapist cannot escape punishment on the sole reason that the victim was unable to produce four valid witnesses. In addition, a rape victim would not be found guilty of zina because she did not consent to the sexual violence inflicted upon her.

What if a non Muslim becomes a victim of a Syariah offence committed by a Muslim?

There is NO provision that prevents this from happening. This is because the alleged criminal is a Muslim and he is governed by Syariah Law. The victim merely needs to submit his complaint to a Syarie Prosecutor and the legal process will take place. The victim may be called upon as a witness – like what we have established above.

What if a non-Muslim committed a Syariah offence?

A non-Muslim is NOT governed by Syariah Law. It is his right to act in any way he pleases, as long as it is in accordance with the laws that govern him ie. the Penal Code.

Yes, this is in contradiction with a 8 of the Federal Constitution, that provides no one shall be discriminated on the basis of religion. I have two responses:

1. We must revert back to the Islamic understanding of ‘Adl or Equity. It does not necessarily mean to be equal in all matters. However, this concept provides that something should be put at its rightful place.

This means that Muslims should be governed by Islamic Law, even if it curbs more rights on Muslims.

This is the reality. If a non-Muslim was caught with a Muslim in the commencement of zina, then he would not be guilty of an offence. Nothing in the Penal Code provides a restriction on extramarital sex.

If this seems hard to be accepted, then we can opt for (ii).

1. If the liberal ‘Muslims’ and non-Muslims are honest in their defense for a 8, then we can also opt the proposal made by Tun Hamid (Former Chief Justice of Malaysia) whom said that Syariah Offences should be included in the Penal Code and shall govern BOTH Muslims and non-Muslims. We can include provisions like ‘a non-Muslim can guilty of zina’. This will be a win-win for everyone. Muslims get to be governed by Syariah and non-Muslims have successfully upheld equality. However, this would be unjust in Islam since we are imposing our laws to non-adherents of Islam.

Since (ii) is very unlikely, liberals should uphold the principle of self-determination. Let Muslims decide for their own community, to be governed by Syariah Law. This is merely adding on their legal obligations to the state since it does not opt out Muslims from the existing Criminal Law ie. the Penal Code. In addition, let non-Muslims enjoy their freedom as provided under the Constitution and we should NOT impose our laws on people who don’t believe in Islam.

Wan Asyraf,

Aktivis ISMA

Disclaimer: The views expressed in this article are those of the author and do not necessarily represent the official views of, and should not be attributed to, Isma or Ismaweb.

Sumber