Why Hudūd?

A. Why Hudūd?

It is a fact that Muslim communities now live in different political contexts. They live in many different countries that adopt different political systems as follows:

1. Islamic Monarchy or Sultanate which independently established and not affiliated to other countries like the monarcy of Saudi Arabia and Brunei Darussalam.

2. Islamic Monarchy or Sultanate which is part of and affiliated to other countries like Sultanate of Kelantan, Perlis and Johor are part of Malaysia.

3. Republic which formulates Islam as its state constitution like Pakistan, Iran, and Afghanistan.

4. Republic where the majority of its population is Muslim but not adopted Islam as its state constitution like in Indonesia.

5. Secular Muslim country where Muslim is the majority inhibitant but differentiate clearly between religion and state just like Turkey.

6. Muslim minority groups in secular developed countries like in America, Great Britain and Europe.

7. Muslim minority groups in developing countries like in Thailand and Sri Lanka.

These different contexts of Muslim communities influence their negotiating capacity to the state power. For example, the experience of Muslim community living in Iran where the position of ulama is strong differs significantly from that of living in America where getting a political position is difficult. Similarly, the experiences of Muslim community in Indonesia who are facilitated to perform religious rites differ from that of Muslim community in Filipina who are the minority. Correspondingly, the implementation of Syari`ah law in Muslim countries like Iran, Saudi Arabia, Pakistan and Brunei which adopted Syari`ah law as state constitution are different from that of in Kelantan, Malaysia, Zamfara, Nigeria or Aceh, Indonesia.

These differences faced by Muslim communities related to Islam and the state have given significant influences in hudūd implementation. Differ from ibadah (worship) and personal matters (al-Akhwal asy-Syakhsyiyyah), the implementation of criminal law that include hudūd ordinance has to have strong support from political authority in power. Besides, many Muslim majority countries are already having their own Criminal laws that differ from that of Islamic Criminal Law. During the collonialisation in many Islamic countries, the colonial changed the Islamic law with a new law gradually. The first Islamic law changed was criminal law including hudūd and followed by other laws. However, family law and inheritance law remained. 159

Colonialisation that occupied many Islamic countries was triggered by World War I in 1914 -1918 and World War II in 1939 – 1945. At that time,

159 Abdullahi an-Na’im, Toward an Islamic Reformation (New York: Syracuse University

Press, 1987), p. 33 .

to preserve world peace, a United Nation was established on October 24, 1945 and initiated by five countries namely: America, England, Rusia, France and China. In 2013, it is recorded that almost 192 countries have joined the United Nation. The following are names of several Muslim majority countries that joined The United Nation namely: Egypt (on October 24, 1945), Iran (October 24 October, 1945), Saudi Arabia (October 24, 1945), Syiria (October 24 October, 1945), Iraq (December 21, 1945), Afghanistan (November 19, 1946), Pakistan (September 30, 1947), Indonesia (September

28, 1950), Jordan (December 14, 1955), Moroko (November 12, 1956), Sudan (November 12, 1956), Malaysia (September 17, 1957), Kuwait (May 14, 1963), Bahrain (September 21, 1971), and Brunei Darussalam (September 21, 1984).

On December 10, 1948, the United Nation declared Universal Human Rights that was famously called Declaration of Universal Human Rights. It covers several issues such as: (1) The right of equality, freedom and safety for all people; (2) Free from slavery, torture and degrading human dignity; (3) Recognition of individual before law in finding justice; (4) Freedom of expression and political participation. These rights bounded the member of The United Nations countries to fulfill. Declaration that contain basic human rights was broken down into convention, namely: (1) Convention on genocide (1984; in effect 1951); (2) Convention on elimination of racial discrimination (1965; in effect 1969); (3) Convention on elimination of discrimination against women (1979; in effect 1981); (4) Convention on oppression and punishment of Apartheid’s crimes (1973: in effect 1976); and (5) Convention on rejection of torture and severe punishment, inhuman, and degrading human’s dignity (1984, in effect 1987). Significant development occured on December 18, 1979 where general assembly of the United Nations approved convention draft on the Elimination of all forms of Discrimination Against Women (CEDAW) and effectively passed in 1981 after receiving the approval from 20 countries.

Human rights and Islamic law differ in regard to the relationship between Muslim and non-Muslim. From the human rights perspective, the relations Human rights and Islamic law differ in regard to the relationship between Muslim and non-Muslim. From the human rights perspective, the relations

be implemented. In regards to women’s context, the confrontation arised on many various issues such as polygamy, child marriage, woman’s inheritance, woman’s witness, wife beating, and woman’s circumcission. These conflicts have triggered the previous wounds during colonialisation where Muslim community had no freedom to practice Islamic law. Several Muslim countries agreed to ratify several International convention initiated by the United Nations as long as it does not contradict Islamic law. Based on this statement, then, the CEDAW’s convention and the convention on opposition against torture and other punishment that consider cruel, inhuman and degrading human dignity became two conventions which are difficult to ratify.

According to Ziba Mir-Hosseini, a Muslim feminist, 1979 was a year of backdrop of the politics of religion, culture and gender in local level as well as global. In this year, the United Nations adopted the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) that became international basis to fight for gender equality. Nevertheless, this year also a victory for political Islam when Iran established Islamic revolution that put ulama in power, and also Pakistan to widen the fiqh discussion by establishing the decree on 160 Hudūd.

The following are the Islamic criminal laws adopted by Muslim countries namely: Libya in 1972, Pakistan (1979), Iran (1979), Sudan (Civil Law, 1983 dan Criminal Law, 1991), and Yaman (Civil law, 1994). At first hudūd was a national law in several Muslim countries, but the trends showed that this law has been implemented in several districts and provinces like in Nigeria in 1999-2000. 161 Nowadays, the implementation of hudūd has also been adopted by several countries in Southeast Asia including Indonesia. Kelantan, Malaysia became the first of Southeast Asian region that adopted

160 Ziba Mir Hosseini, Memidanakan, p. 9. 161 Ziba Mir Hosseini, Memidanakan, p. 10.

hudūd and qishās in 1993 through the Bill of Klantan Criminal Syari`ah (Kelantan Criminal Code Enactment-II). It is followed by Aceh, Indonesia, in 2002 by the approval of qanun of Nangroe Aceh Darussalam number 10, 2002 on the Islamic Syari`ah Court. Last, Brunei Darussalam announced the implementation of Islamic criminal law Islam on Mei 1, 2014 through the instruction of Kanun Hukuman Jenayah Syariah 2013 (the enactment of jinayaSyari`ah punishment).

At least, eight countries of the United Nations members adopted hudūd implementation namely Pakistan, Iran, Sudan, Yaman, Nigeria, Malaysia, Brunei Darussalam, and Indonesia. Taufik Adnan Amal and Samsu Rizal Panggabean listed seven factors that inspired several countries to enact Islamic Syari`ah with hudūd as part of it, specifically:

1. Religious justification, that the enactment of Islamic Syari`ah is the obligation of Muslim. In the mean time, Abduh argued that Islamic Syari`ah would not be implemented unless there is support from political authority ( al-quwwah), otherwise, the people will disobey Islamic teachings. In this context, however, Abduh did not identify Syari`ah to strict legal regulation but radical Muslim did. Qur’anic verse Al-Maidah, 5:49 which contains the instruction to govern disputes based on God’s law is one of the religious texts used to justify the use of hudud. 162

2. Revitalization of post-colonial law. During colonialisation in many Muslim’s countries, the colonials changed Islamic Syari`ah law with their own law (Western Law) and the criminal law was the first to be affected. Criminal law was the least position of all Islamic Syari`ah to be defended, but family law and inheritance were maintained. In this context, re- enactenactment of hudūd and qishās is a symbol of disagreement to surrender to the colonial and also a symbol of freedom to implement Islamic Syari`ah as a mandate of religious belief.

162 Several Muslims interpret the verse Ma Anzalallahu- that has been ordained by Allah- to the laws that stated in the Qur’an and Sunnah. This interpretation did not accommodate the whole picture of the verse because the verse used lafad ‘am (general intention) that also include all other laws t not stated in the Qur’an and Sunnah.

3. Arab - Israel War . The war between Arab and Israel that were triggered by the Israel occupation into Palestine and the Arab was defeated in 1967 has resulted in trauma among Muslims. This case was interpreted that the Muslims turned away from their religious teaching. Then, the solution to resolve the situation was by returning and revitalizing Islamic teachings, and one of them was by implementing Syari`ah Law. This is supported by the fact that Muslim countries generally do not use Islamic law as their national law even though the principles of Islamic law have been integrated into their law. Theimplementation of Islamic Syari`ah, however, was orientated to usethe classical fiqh books by usingthe tool of state officers, not to use dynamic legislation and methods which possibly involve active participation from the society.

4. Globalisation. Globalisation is understood as giving negative influence to the Muslim cultures through the adoption of capitalist ideology and liberal democracy that have loosened Muslim’s institution and values. However, Western institutions and values were identified as failed to solve problems emerged in Muslim community. On the contrary, these have been known as the reasons for Muslim regression in many aspects of their lives. In this context, implementing Islamic Syari`ah is the answer to all those problems.

5. Domestic economic crisis. Economic crisis and widening the gap between the poor and the rich in Muslim countries and other crisis like monetary crisis, inflation, unemployment, and incomprehensible of health facilities have resulted in potential hope in the implementation of Islamic Syari`ah.

6. Failed States . Development ideology employed by Muslim rulers gave no significant development in political and social life of Muslim community. On the contrary, this ideology has facilitated the leader of the state to gain personal and his crony’s benefits. Meanwhile, the Muslims society under their power were suffered. Dictatorship, state opression, social injustice, unsuccsesful development by ignoring local wisdom, domination of governmental members, corruption, and nepotism contribute significantly to the demand of Syari`ah law implementation.

7. Political chaos. Islamic Syari`ah is used to publicly gain political support and fondation to remain in power. One of the examples is the implementation of Syari`ah law in Indonesia which is connected with the governmental policy that give space for the possibility of the enactment of Syari`ah law like the Decree of Regional Autonomy No. 22 year 1999 and several attempts to amend the 1945 national constitution (UUD 1945).

The above mentioned factors encouraged the implementation of Islamic Syari`ah in many Muslim countries in Africa such as Egypt, Sudan, and Nigeria and in Asia like Pakistan, Afganistan, Malaysia and many others in recent era. This fenomena mean that the demand to implement Syari`ah law is getting bigger as shown by more and more Muslim countries which try to enact this law more than before.

The seven factors above inferred that there have been changes in the implementation of criminal law in Muslim society today with that of in the Prophet Muhammad’s period. In the Prophet’s era, physical punishments like flogging, qishās (in the case of murder or amputation of limbs), and rajm (stoning to death) are the types of punishment that have long been practiced in Arab society. These punishments, which seemed inhuman, were responded by Islam by inserting a new protocol such as that the punishment should not be conducted excessively, attending to equal rights (in punishment or compensation), by giving opportunity to facilitate forgiveness and repentance without ignoring the victims’ rights to receive fair compensation. Thus, the emphasis is not on the form of the punishment just like what the Muslim modern country is trying to employ, but to the norms and ethics of its implementation in accordance with the spirit of Islam.

There are many differences in other aspects of hudūd. For example, although hudūd is believed as the ordinance prescribed by Allah and the Messenger, there are various interpretations available in its implementation. Thus, its meaning vary in different time and context. 163

163 Ziba Mir-Hosseini stated about the contestation between Human Rights and Islamic Law in general including hudūd.See Ziba Mir Hosseini, Memidanakan, p. 5.