Thursday, September 20, 2012

What is hudud?

This article originally appeared in Dutch in "Achter Tralies" (Behind Bars) Al-Nisa, Islamitisch maandblad voor vrouwen (Islamic monthly for women), 31st year, No. 9, Sep 2012.

Let's look at two most talked-about hudud punishments often brought up when talking about implementing sharia law: cutting of hands for theft, and stoning for adultery. It looks at the differences between divine and contemporary meanings of relevant terms such as hudud (limits), qat’a yadd (cutting of hands), saariq (thief), fasaad (disorder), zina (adultery), and jaldah (lashes) while also reflecting on the instrumentalisation of hudud law by Islamic authorities in the contemporary context.

What does hudud mean?
As a noun, hudud appears in the Quran to refer to specific rules or laws decreed by God to us concerning fasting (2:187), divorce (2:229-30, 58:4, 65:1), and the inheritance of orphans (4:11-12). The observance of these hudud, or limits, differentiates believers from disbelievers (9:97, 9:112), who will face different consequences (58:5, 58:20, 9:63).

The contemporary use of hudud refers to punishments formulated by the first generation of Muslim scholars after the Prophet’s death for acts that are considered to have violated a ‘right of God’. Under Islamic criminal law, ‘hudud crimes’ include apostasy, consuming alcohol, theft, robbery, zina, false accusation of zina and treason. Different madhahib, or schools of thought, exclude one or more of the above, and various permutations appear in different Islamic legal systems across the world. For example, Iran’s Islamic Penal Code includes all these crimes in addition to the crime of ‘pimping’. On the other hand, the Indonesian province of Aceh has flogged offenders for drinking alcohol, gambling and adultery. Malaysia has recently caned for zina and gambling, but not for alcohol consumption.

While the Quran details specific punishments, different sentences are carried out in practice. Although the Quran prescribes (a specific type of) flogging as a punishment for (a specific type of) adultery, stoning is the punishment of choice for adultery in Afghanistan, Iran, Iraq, Northern Nigeria, Pakistan, Saudi Arabia, Somalia, and Sudan.[1]

Cutting the hands of thieves
Amputation of a hand as punishment for theft or treason is a literal rendering of qat’a yadd (‘cut off hands’) as a punishment for saariq 5:38) and qat’a yadd wa rujul (‘cut off hands and feet’) for fasaad (5:33). Saariq refers to habitual stealing; acts that would create a great sense of insecurity in a society. Fasaad refers to bloody crimes, widespread corruption, or great disorder.



Elsewhere in the Quran, God ‘cuts off’ or defeats those who disbelieve (3:127, 6:45, 8:7) or reject God’s signs (7:72). The unity of mankind can sometimes be severed or ‘cut apart’ (2:27, 13:25), or one’s path to God can be ‘cut off’ or obstructed (29:29, 22:15, 69:49). Only palm trees are literally chopped down (59:5).[2] The same phrase is used to describe the women in Surah al-Yusuf who were brought in by the governor’s wife to try and seduce Prophet Yusuf. When they saw him, they ‘cut their hands’ (12:31) -- an alternative translation to this is that they ‘exhausted their efforts’ in trying to make him sin.[3]

Yadd (‘hand’) refers mostly to our ability to create or destroy, or God’s power and authority,[4] and only a few times as literal hands (e.g. 2:249, 4:43, 5:6, 6:7). However, literal understandings form the basis of the punishment of cutting off hands for theft (5:33) and the hands and feet for treason or rebellion (5:38). For example, in Northern Nigeria two men had their hands amputated for stealing a farmer’s bull, while during Somalia’s civil war, ‘cross-amputation’ (amputation of a hand and a foot from opposite sides) was carried out to incite fear and encourage compliance with Islamist groups.

This punishment may not act as a sufficient nakala (5:38) or deterrent for the contemporary nature of theft. Even though white-collar crime involves huge amounts of money, it is often the most disadvantaged in society who are convicted for small-scale thefts. Keeping in mind Quranic goals of social justice, a poor man stealing bread cannot be a habitual thief, but a manifestation of society’s collective failure to look after their poor.[5] Amputation may deter him and other desperately poor people, but it also allows the state to close a blind eye to root problems of conflict or inequality. In fact, during his rule, Caliph Umar turned a case of property theft by a servant against his master. When the servant explained that he stole to feed his family, Umar faulted the master for failing to provide sufficient food and shelter.

A more logical interpretation is that the state should ‘cut off’ the ability of habitual thieves to steal, cause disorder or run away. Most legal systems today obtain this outcome through imprisonment, which also allows for repentance and making of amends (5:39), which prevents long-term burdens of imprisonment on the state. Furthermore, the Quran specifies that offenders who present themselves to the authorities before being arrested could also be pardoned (4:64).

What to do with adulterer(esse)s?
The term zina encompasses all forms of sexual immorality and lewdness. In the Quran, the need for four reliable witnesses to such acts (4:15-16) imply that if done in private – as most adultery is – punishment is to be left to God. God specifies 100 superficial lashes[6] to be carried out for public adultery done by al-zani and al-zaniyatu, or habitual adulterers (both men and women) since such recurring activity done openly would cause great imbalance and disorder in society. The need for an audience to witness the punishment (24:2) implies that public humiliation, and not torture, is the main goal.

The story of Prophet Yusuf, who was accused of zina, teaches that the testimony of the witnesses should be cross-checked with other evidence.[7] In that case, the punishment for female offenders is to confine them in their houses so that they would not spread their immorality to others, until they repent or change their ways, in which case we should leave them alone (4:15-16). More importantly, those who accuse innocent women of zina should be punished with 80 lashes, and their testimony to never be accepted again (24:4).

Institutionalised Islamic criminal law instead prescribes stoning for adultery, a punishment specified in the Torah, and not in the Quran.[8] Since the justification for stoning relies completely on a hadith and not found in the Quran, its label as hudud is questionable. Such inconsistencies between the hadith and the Quran remain controversial.

Today, stoning is often implemented in an arbitrary way, without due trial or process. It also targets those who do not have the means or status to avoid conviction, and many more women than men.[9] The patriarchal nature of many Islamic legal systems today also manifests the lack of convictions for false zina accusations or rape, even though the Quranic punishment for zina is the same. Worse, in the case of Pakistan, raped women who seek redress are instead often convicted for zina![10]

In summary, only public and recurrent sexual immorality by men and women, with four testimonies and evidence, should be punished, with a public flogging to humiliate them and confinement to keep them away from society until they repent.

Conclusion
We are encouraged to observe God’s hudud in whatever has permitted to us with regards to fasting, divorce and inheritance.[11] After Prophet Muhammad’s death, fiqh scholars elaborated on punishments for ‘hudud crimes’, which were eventually implemented by various leaderships until today.

Although these punishments represent the maximum penalty and aim to act as a deterrent, they often disproportionately punish the weakest sections of society. The fact that less harsh penalties as suggested in the Quran, such as confinement, making amends, or pardon, are hardly implemented hints at the instrumentalisation of hudud to enforce restrictive rule or to impose order in an atmosphere of instability. The insertion of hudud laws into a country’s existing legal system is also sometimes a way to display how ‘Islamic’ a country is.

Looking at the Quran holistically also surfaces other punishable acts, such as harassment and false accusations of zina. It is reasonable to say that God’s limits are not enforced correctly today. Instead of seeking justice and redress for those who seek it, the partial enforcement of hudud produces unjust outcomes, which is possibly worse than not implementing hudud law at all.
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References
[1] Article 146 of Sudan’s Criminal Act 1991 provides that the penalty for adultery by a married person is execution by stoning, while that for an unmarried person is 100 lashes.
[2] It also appears to literally mean the crossing of a valley, in 9:121.
[3] Shabbir Ahmed (2007) ‘Quran as It Explains Itself’. Date. Available here.
[4] Yadd appears more than 100 times. For some examples of yadd as human ability, see 2:79, 2:95, 3:182, 4:62, 4:91, 2:195, 4:77, 4:91, 5:11, 5:28, 2:237, 5:64, 5:94; as God’s power, see 3:26, 3:73, 5:64.
[5] The concept of shubhah, or doubt, in Islamic criminal law stipulates that any doubt about the offender’s guilt (i.e. whether he is truly a habitual thief, or not in need of the stolen goods) should suspend judgment and leave his punishment to God. See Muhammad ‘Ata al-Sid Sidahmad (1995) The Hudud: The Hudud are the Seven Specific Crimes in Islamic Criminal Law and their Mandatory Punishments. Petaling Jaya: Muhammad ‘Ata al-Sid Sidahmad.
[6] The root for ‘lashes’ is the same for ‘skin’ (4:56, 16:80, 22:20, 39:23, 41:20-22).
[7] His governor was told to look at whether Yusuf’s shirt was torn from the front or the back, which would indicate whether Yusuf or the governor’s wife was guilty (12:26).
[8] Some hadith recount that the Prophet ordered two Jews to be stoned, because they were bound by specific laws sent to them in the Torah. See Sanaz Alasti, ‘Comparative Study of Stoning Punishments in the Religion of Islam and Judaism’, Justice and Policy Journal 4(1). The Center on Juvenile and Criminal Justice, Spring 2007.
[9] Chanté Lasco, ‘Legislative Focus: Congress Condemns Executions by Stoning’ Human Rights Brief 10, no. 3 (2003):43.
[10] Rahat Imran (2005) ‘Legal Injustices: The Zina Hudood Ordinance of Pakistan and Its Implications for Women’ Journal of International Women’s Studies Vol. 7, no.2 (November 2005).
[11] It is also interesting to note that the injunction to observe these hudud, or limits of God (9:97, 9:112) are found in Surah at-Tawbah, which means repentance.

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