Zakay A Rehman, via e-mail
According to Wikipedia, Hudud (Arabic), also transliterated hadud, hudood; singular hadd, literal meaning 'limit', or 'restriction') is the word often used in Islamic literature for the bounds of acceptable behaviour and the punishments for serious crimes.In Islamic law or Sharia, hudud usually refers to the class of punishments that are fixed for certain crimes that are considered to be 'claims of God'. They include theft, fornication, consumption of alcohol, and apostasy.
- Hudud as a form of punishment according to Wikipedia further “is one of four categories of punishment in Islamic Penal Law:
- Qisas - meaning retaliation, and alluding to the biblical principle of 'an eye for an eye.'
- Diyya - compensation paid to the heirs of a victim. In Arabic the word means both blood money and ransom.
- Hudud - fixed punishments
- Tazir - punishment, usually corporal, administered at the discretion of the judge
- Hudud offenses are defined as 'claims of God', and therefore the sovereign (government) was held to have a responsibility to punish them.
All other offenses were defined as 'claims of [His] servants', and responsibility for prosecution rested on the victim. This includes murder, which was treated as a private dispute between the murderer and the victim's heirs.
The heirs had the right to compensation and to demand execution of the murderer (see qisas), but they could also choose to forgive.
Hudud offenses include:
- Theft (sariqa)
- Highway robbery (qat' al-tariq)
- Illegal sexual intercourse (zina)
- False accusation of zina' (qadhf)
- Drinking alcohol (sharb al-khamr). Unlike the first four offences listed above , not all jurists consider drinking alcohol to be a hudud offense.
- Apostasy (irtidād or ridda) includes blasphemy like the first four offenses listed above, not all jurists consider apostasy to be a hudud offense.
Though the legal jurisprudence relating to Hudud is far more complex than a few paragraphs of explanation.
However, the main reasons behind the issue of Hudud being so divisive is obvious:
That there is already a secular system of penal laws in place and;
Hudud as a function of Sharia law is not mutually ‘inclusive’ to the entire populace (discriminatory).
The fact that we already function in a modern society within which, a penal law system already exist forms a main barrier to Hudud law entry, and going by what examples already exist within the sharia laws adopted in Malaysia, a dual penal system will not augur well to our society.
Furthermore, the proponents of Hudud laws, always seem to dish out their justifications, when apparently the secular legal system seem to fail society’s ills. Where in there has not been any real ‘empirical’ proofing that new forms of more punishments provides solution to society’s ills.
However, interestingly enough proponents of Hudud come from a ‘faith’ not ‘fact’ space as John Esposito explains “that some Muslims justify these punishments in general terms because they punish crimes that are 'against God and a threat to the moral fabric of the Muslim community (notwithstanding that Muslims don’t function in isolation within society stand point).' "
The second equally or more divisive factor is that Hudud as in the greater Sharia legal system does not operate on a level playing ground. As Wikipedia explains further on burden of proof “Only eye-witness testimony and confession were admitted. For eye-witness testimony, the number of witnesses required was doubled from Islamic law's usual standard of two to four.
Moreover, only the testimony of free adult Muslim males was acceptable. There is, however, a difference of opinion on this matter as a distinction is made between pre-arranged witnesses (contracts) and incidental witnesses (theft, murder, etc.) and consequently no difference recognised between a male or female witness (In non-hudud cases the testimony of women, non-Muslims and slaves could be admitted in certain circumstances).
A confession had to be repeated four times, the confessing person had to be in a healthy state of mind, and he or she could retract the confession at any point before punishment.
However, while these standards of proof made hudud punishments very difficult to apply in practice, an offender could still be sentenced to corporal punishment at the discretion of the judge ('tazir'), if he or she was found guilty but the standards of proof required for hudud punishments could not be met.
The application of hudud (as similarly experienced in the sharia family law in Malaysia) tends to concentrate the power of decision making exclusively within the realm of Muslims with heavy emphasis on adult males (Muslims), thus creating hierarchical structures without due care for merit .
Even today cries of injustice in the treatment of natural laws (where men and women are considered equal regardless of race, creed or religious beliefs), are heard against sharia jurisprudence application in Malaysia and throughout the world.
The argument that nevertheless, hudud like sharia, can be implemented exclusively on Muslims has yet to be proven successful thus far as witnessed in several high profile court cases on the contrary recently.