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Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia

Author(s): Mohammad Hashim KamaliSource: Arab Law Quarterly, Vol. 13, No. 3 (1998), pp. 203-234Published by: BRILLStable URL: http://www.jstor.org/stable/3382008.

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PUNISHMENT IN ISLAMIC LAW: A CRITIQUE OFTHE HUDUD BILL OF KELANTAN, MALAYSIAMohammadHashimKamali*

INTRODUCTIONEver since its ratification n November1993by the StateLegislatureof Kelantan,the HududBill hasbeen the focusof publicdebate n Malaysia.The Bill has comeunder criticismboth on specific pointsas well as generallyas being eagerto inflictpunishmentand pain. This approach,althougha necessary ngredientof a penalpolicy, needs to be moderatedby such otherinfluencesthatare felt to be equallyimportant n the formulationof a comprehensivephilosophyof punishment.Toshow care and compassionand to providean opportunity or those who might bereadyto repentand reformareamong he considerationshathavereceivedgreaterattention in the formulation of a comprehensivepenal policy in modern times.Apartfrom the essentialmerit of theharmoniousapproach, he addedemphasisonrehabilitation ndreform s an acknowledgementn thepartof societyat largethatcrime is not a totally isolated phenomenon and that society has increasinglybecome an unwillingpartner n the risingtide of criminalityandaggression.The Qur'anic outlook on punishment may be characterisedby its dualemphasis on retribution and reformation. It is my submission that theconventional iqhi approachto the formulationof the underlying policy towardthe hududhas failed to be adequatelyreflective of the Qur'anicguidanceon thissubject. And then in its typically imitative and taqlidi orientation, I furthersubmit, that the Hudud Bill of Kelantanhas also failed to be reflectiveeitherofthe balanced outlook of the Qur'anor of the social conditions and realities ofcontemporaryMalaysiansociety.This article s presented n five parts.The firstparthighlights he provisionsofthe Bill concerning he six hududoffencesthat will be the focus of our discussionthroughoutthe article.Part two is basicallya statementof the problemsand it isconcernedmainlywith the specificsas to whereandhow couldthe Hudud Bill beamendedandimproved.Here I haveexamined he provisionsof the Bill which arein conflict with the Federal Constitutionand the Penal Code. Issues are alsoaddressed n this partpertaining o the statusof non-Muslims,the proofof zina,

* Mohammad Hashim Kamali is Professor of Law at the International Islamic University ofMalaysia.Arab LawQuarterly,1998]203-234

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204 ARAB LAW QUARTERLYquestions over rape, circumstantial evidence, and issues over apostasy, slanderousaccusation, and the punishment of theft.The next part presents a perspective concerning the understanding of hududinthe Qur'an and related developments in fiqh. An enquiry into Qur'anic evidenceleads us to the conclusion that a certain rigidity which has characterisedthe juristicformulations of fiqh on this theme are neither Qur'anic nor authorised by theSunnah. "Hudud Allah" in the Qur'an is a broad concept which is neitherconfined to punishments nor to a legal framework but provides a comprehensiveset of guidelines on moral, legal, and religious themes. Juristic thought has,however, followed a different course whereby this broad and comprehensiveconcept is reduced to mean quantified, mandatoryand invariablepunishment. Thefour offences for which the Qur'an prescribed a punishment were on the otherhand expanded, in the fiqh presentations of the hudud,to six, and according to analternative version, to seven, offences - and this was undertakenin the face of clearevidence that advised a restrictive approach in punitive matters. Whereas theQur'an has, in all the four instances where specified punishments occur, madeprovisions for repentance and reformation, juristic doctrine has either left thistotally out or reduced it to a mechanical formality that can hardly be said to bereflective of the original teachings of the Qur'an.Part four enquires into the evidence concerning the punishment of stoning(rajm) for zina and underlines the issues which have given rise to differencesamong the madhahib. The last part of the article surveys recent views andcontributions of Muslim scholars on the implementation of hudud n contemporaryMuslim societies. The discussion here also advances a perspective over thequestion as to which should come first: an Islamic government, the Shari'a, or thehudud. To insist on the hududas an isolated case without providing the necessarycontext and environment is not likely to engender the desired results and may evenprove oppressive and unjust. My discussion in this part ends with a brief analysisof the Hadith, which is also a legal maxim, that hudud must be suspended indoubtful situations.

AN OVERVIEW OF THE BILLThe Shari'a Criminal Code (II) Bill 1993 (henceforth referred to as the Bill)consists of 72 clauses and five supplementary schedules, divided into six parts,namely hudud offences, qisas (just retaliation), evidence, implementation ofpunishments, general provisions and (Shari'a) court proceedings. The hududoffences in part one also appear under the six headings of theft, highway robbery(hirabah),unlawful carnal intercourse (zina), qadhf,that is slanderousaccusation ofzina which cannot be proved by four reliable witnesses, wine drinking (shurb)andapostasy (irtidad).

On 25 November 1993 when the state legislature unanimously passed the Billthe Chief Minister of Kelantan made it clear that the Bill "could not be



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PUNISHMENT IN ISLAMIC LAW 205

implementeduntil the Federal Governmentof Malaysiamade changes to theFederalConstitution".1This wasevidentlyanacknowledgement n thepartof theStateGovernment hatby passingthehududBill, the statelegislaturehadexceededits jurisdiction under the Federal Constitution. The State Government alsoannounced hat the Bill "waspreparedby a committeeandreviewedandapprovedby the State Islamic Religious Council and the state Mufti after consideringitfrom all aspectsof the Islamic Syariah".2The Chief Ministerwent on record toadd that by enacting the Bill, the State Governmentwas "performinga dutyrequiredby Islam"andfailureto act in this regard"would be a greatsin".3As tothe question whether the people had acceptedthe State Government'splan toimplementthe hudud aws, the Deputy Chief Minister (Abdul Halim) made theremarkable nnouncement hat "thequestiondid not ariseas Muslimsin the Statewho rejectedthe laws would be consideredmurtad apostate)".4In its sectionon theft (sariqa) he Bill penalisesthe first offence of theft,whenitfulfils all the prescribedconditions (15 such conditionsprovidedunder ClauseSeven)- with amputationof the righthandfromthe wrist,and the secondoffencewith amputationof the left foot (in the middlein sucha waythatthe heelmay stillbe usableforwalkingandstanding).The thirdandsubsequentoffencesof theftarepunishablewith imprisonment or such terms as in the opinion of the court are"likelyto lead to repentance" Clauses6 and 52).The punishmentfor highwayrobbery s deathand crucifixion f the robbery saccompaniedby killing;andit is deathonly if the victimis killedbutno property stakenaway.In the event where the robberonly takesthe propertywithoutkillingor injuringhis victim the punishment s amputationof the righthand and the leftfoot (Clause9).Zina is punishableupon convictionby stoning (with stones of mediumsize) todeathfor a marriedperson(i.e., muhsan)ndwhippingof 100 lashesplus one yearimprisonment or the unmarried.Foureye-witnesseswill be required o provetheact of zina. Each witness must be an adult male Muslim of just character.Witnesses shall be deemedto be just until the contrary s proven. The Bill alsostatesthat pregnancyon the partof an unmarriedwomanor when she deliversachild shall be evidence of zina which would make her liable to the prescribedpunishment(Clauses1, 41 and 46).Qadhfor slanderousaccusationof zina which the accuser s unableto provebyfour witnesses carries80 lashes of the whip, and punishmentfor drinking iquorbased on the oraltestimonyof two personsis whippingof not more than 80 lashesbut not less than40 (Clauses13 and 22).A Muslim (adult and sane) who is accused of apostasyis requiredto repentwithin threedaysandfailure o do so makeshim or herliableto the punishmentof

1 New Straits Times, of Kuala Lumpur, 25 November 1993, at p. 8.2 Ibid.3 Ibid.4 "HududLawsfor MuslimsOnly",New StraitsTimes,19 November1993.



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206 ARAB LAW QUARTERLYdeath as well as the forfeitureof his or herproperty.The offenderwill be free ofthe deathsentence,evenif it has beenpassed, f he or sherepents;hepropertywillbe returnedbutthedefendantwouldstill be liable o imprisonment notexceedingfive years"(Clause23).The Bill provides for the establishmentof a Special Shari'a Trial Courtconsistingof three judges, two of whom shall be ulema, and a Special Shari'aCourtof Appeal,consistingof fivejudges, ncluding hreeulema.These courtsareto be in additionto the Shari'acourts that normallyoperatein Kelantan.Allsentencescanbeappealedagainstand sentencesareenforceable,n thecaseof haddoffences,only whenconfirmedby the SpecialAppealCourt(Clause49).

PROBLEMATICS OF THE HUDUD BILLThe HududBillgivesrise to threetypesof problems,oneof which smanifested nlack of jurisdiction eadingto conflict withthe FederalConstitution.Then thereare problemsrelatingto the realitiesof Malaysiansociety and politics. In thecontext of a multi-religioussociety, this Bill raisesquestionsas to whetherthenationshouldbe governedby two sets of laws,oneforMuslims, heotherfor non-Muslims And thenthe fact thatonlyoneof the 13statesof Malaysiahaschartedadifferent plan for itself has presentedthe nationalgovernmentwith difficultchoices.The otherproblemhereis manifestedn thefact thattheBill failsto offera meaningfulalternativeas it raises questionsover the wisdom of a literalistapproach o the understanding f hudud.The Bill exhibitsno attempt o exerciseijtihadovernew issues, such thatwouldfulfil the ideals of justiceandencouragethe developmentof a judicioussocialpolicy.Constitutional issuesThe FederalStatepowerconflictover criminal awassumednewprominencewiththe passageof this Bill partlybecauseof its overlapwith the PenalCode. Someoffences under the Bill are also federal law offences,giving rise to the issue ofdoublejeopardywhereboth lawswouldbe simultaneously nforceable.A personin thatsituationcan seekprotectionagainstdoublejeopardyunderArticle 7 (2) ofthe Federal Constitution.There are also a number of offences such as theft,robbery,killing, rape, causingbodilyharm,and unnaturaloffenceswhich havebeen dealtwith by the Penal Code,and thereareprovisions n this Codewhichrelateto such other offences as false accusationof zina, consuming iquor, andusing wordsof contemptagainstreligion.In an attempt o overcome his problem he Bill has barredanyproceedingsortrialunderthe Penal Code of a personwho has been triedfor the sameoffenceunder this Bill (Clause 61). But then questions arise as to the acceptability of thisformula and whether it can resolve the conflict which the Bill has given rise to inthe first place. It is quite unprecedented for the laws of one jurisdictionto prohibit



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trial underthe laws of another urisdictionparticularlywhenit is the former hat isviolatingthe limits of its jurisdictionunderthe Constitution.5The Bill also providedfor a rangeof punishments hat are far in excess of thelimitationswhich Parliamenthas imposed on the jurisdictionof Shari'acourts.The Shari'a Courts (Criminal Jurisdiction)Act 1965, as amended in 1984,restrictedthe jurisdictionof these courtsonly to Muslims who may be tried foroffences punishable with imprisonmentof up to three years or a fine of up toRM5,000 or with whippingnot exceedingsix strokes,or with any combinationofthese. The hududpunishments hatthe Bill hasproposedexceeds these limits,andit is doubtful whether the Special Shari'aCourtsthat are envisagedin the Billcould lawfully exercise their functions unless the Federal Parliamentsuitablyamendsthe provisionsof the 1965Act.As for the possibility that the Bill might be nullified if it were found to be inconflict with the FederalConstitution,The Deputy Chief Minister of Kelantanannounced,daysbeforethe ratification f the Bill in the StateAssembly,that "theKelantan Government would have fulfilled its responsibilitiesin tabling andgettingthe StateLegislativeAssemblyto passthe hududaws.It will then be up tothe Federal Muslim leaders to prove their stand on the Islamic Shari'a".6Hefurtherpointed out that the State Governmentwould not be able to enforce theproposedlawunlesscertainprovisionsof the FederalConstitutionwereamended.The most explicitresponseto datecamefrom the PrimeMinister,Dr Mahathirhimself who said on 9 September1994that "the Governmentwould not sit backand allow Pas to commit cruel acts against the people in Kelantan, includingchopping off the hands of criminals".The Prime Minister added that the Pasversionof the Hudud Law "punishesvictimswhile actualcriminalswereoftenletoff with minimumpunishment.For instance, f two people, a Muslim and a non-Muslim, committeda crime, the Muslim offenderwill be punished severelylikehaving his hands chopped off while the non-Muslim offenderwill escapewith alight sentencelike a fine or a month's imprisonment".The PrimeMinister saidthat the Governmentwas convincedthat "the law passedby the Kelantan StateAssemblyin November lastyearwas againstthe teachingsof Islam",addingthatthe punishment meted out must be fair. However, accordingto the Pas laws,criminalsarelet off andthe victim is punished.This is "against he trueteachingsof Islam" and should thereforebe rejected.The Prime Minister said that Pas "was only interestedin gaining politicalmileage"by using the issue in viewof the cominggeneralelection,addingthat Pasleaders wereawareof this and wouldcontinueto harpon the issue. Dr Mahathirdeclaredthat "the Governmentwould take action againstthe Pas-led KelantanGovernmentif it implementedthe Pas-createdHudud laws". The proposedlawcouldnot be enforcedbecause t wasnot in line with the FederalConstitution.The

5 Cf.,Mohammed mam,"IslamicCriminalLaw in Malaysia:FederalStateJurisdictionalConflict"[1004] 1 Current Law Journal (March 1994), p. xxix.6 "HududLawsMayNot Be Enforced",New StraitsTimes,22 November1993.



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208 ARAB LAW QUARTERLYFederal Government annotallow the Pas Governmento enforce he lawswhichareagainstthe Islamicspiritof justice.7The Shari'a and Hudud Laws Committeeof the MalaysianBar Councilannounced n earlyOctober hatthe HududBill was consistentwith Islamiclaw,butthattherewas"inconsistencyncertainprovisionsbetweenhududawsandtheFederal Constitution which can be overcomeby amendingthe Constitution".Followingthis, the State Governmentof Kelantanrenewed ts callandurgedtheFederal Government o review its decisionoverrejecting he HududBill.8The LawMinister,SyedHamidAlbar,stated n a seminarpaperhe presented nKualaLumpuron 14October1994 thatthe FederalGovernmentmayintroduceanew law "to check inconsistencies" n the legislationof Shari'a law by StateGovernments.He commented hat "Shari'a aw should not be treatedas a statematter"anymorebecause his hadgivenrise to disparitiesbetweenthe stateandfederaljurisdictionson the one hand andthose of the variousstateson the other.The FederalGovernmentwouldconsultStateGovernments nd Shari'aexperts,the Ministeradded,before ntroducing ewlegislation,whichhe referredo asthe"HukumSyarakAct".9To enablethe Shari'aCourts o dealwithcasesof hudud,qisasanddiyat,it willbe necessary o amendthe 9th Schedule,List 2 of the Constitution ndrepeal heShari'aCourts(CriminalJurisdiction)Act. ProfessorAhmadIbrahimwho madethis observation arlier n 1993also wrotethatanotherpossibilitywould be for theFederal Government"to enact the hudud,qisas,diyat and ta'zir laws for thepurposeof uniformityof laws betweenthe states".But the learnedauthoraddedthat it would not be easy to do this "considering he difficultiesand problemsarisingfrom the FederalConstitutionand the present awsin Malaysia".10The Federal Governmenthas obviouslynot taken up the suggestionsmadeearlier by the Kelantan State Governmentand the Bar Council Committee.Insteadof accommodatingequests or constitutional mendment o give the StateGovernmentof Kelantana greater ayin Shari'amatters, t seemsthatthe FederalGovernmentmightwell do justthe opposite.

The position of non-MuslimsNotwithstanding he attempt n the HududBill (Clause56) to make he proposedlaw applicable o Muslimsonly, and the choice it has granted o non-Muslims ochoose if they wish whether the law should apply to them or not, there arequestionsthat have remainedunanswered.One of these is concerned,as alreadyindicated,with the issue of jurisdiction.To grantsuch a choiceto non-Muslimstends to fall intoconflictwiththe FederalConstitutionwhichclearlyrestricts he7 New Straits Times, Kuala Lumpur, 10 September 1994, pp. 1-2.8 New Straits Times,2 October 1994, p. 6.9 New Straits Times, 15 October 1994, p. 2.0oAhmad M. Ibrahim, "Suitability of the Islamic Punishments in Malaysia," IIUM LawJournal, 3,no. 1, January 1993, pp. 14-15.



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PUNISHMENT IN ISLAMIC LAW 209state jurisdictionto making law only as to "offencesby persons professingthereligionof Islam".Similarquestionstend to ariseas to the stateof the lawwhenboth Muslims andnon-Muslimsareinvolved in a caseof, sayadulteryortheft. It wouldseem that thechoice of lawthat is envisaged n Clause56 would be discriminatory nd illogical.The questionwasrightlyposedin anewspaperarticlewhenit wasasked:If the lawis meant for Muslims only, what will happen in cases where the victim is of adifferentfaithfromthatof the criminal's?Orif the witnessesto the crimearenon-Muslims? Or if the accomplices o the crime are followersof differentfaiths?"The Shari'a itself does not providefor such a choice as in most of the hududcrimesdifferenceof religiondoesnot affectthe unifiedapplicationof the law. Theonly exemptionfound in the Shari'ais with regard o the consumptionof liquor,which by itself is not an offence with respectto a non-Muslim. Accordingto aHanafiopinion, non-Muslims are alsonot liableto the haddpunishmentof zina.And then, of course,apostasycannotbe committedby anon-Muslim.But the Billis anomalouson the applicationof hudud.What if the otherpartyto the offence,whetherMuslim ornon-Muslim,is anativeof anotherstateof Malaysiawhere thehududpunishmentsarenot applied?The Bill clearlyprovided hat it shallapplytoevery Muslim "in respect of any offence committed by him in the state ofKelantan" (Clause 56). The Kelantan Governmenthad obviously no betteralternativeas it couldonly make awfor theMuslimsof Kelantan,but by the sametoken,one might saythat this provision endsto indulgein a doubtfulapplicationof the hudud. maginea situationwherea residentof Kelantancommits anoffence.of justtheft justoutsidethe bordersof Kelantan,orchoosesto go there forthe verypurpose of committingadultery,theft, and drinking iquor, etc. The Bill couldthen be manipulatedas it remains open to abuse and there is little that theGovernmentof Kelantancould possiblydo to preventthat.There is a provisionin the Bill concerningabetmentand conspiracyby two ormore persons in which case, "every personwho abets or assists or conspiresorplots for the commissionof such offenceshallbe guiltyof that offenceand shall beliable to be punished with imprisonmentas ta'zir punishmentfor a term notexceedingten years"(Clause 57). This clause is evidentlydesigned to cover theeventuality,as discussedabove, of a non-Muslimbeing a partyto the hudud, orthe terms "abetment, assistance, conspiracy and plot" are broad enough tocomprise every possible case in which a non-Muslim might be involved in theperpetrationof a haddoffence.The non-Muslims of Malaysiahaveon manyoccasionsexpressedapprehensionoverthe manner n whichthe Shari'amightbe interpretedn regards o them. In aKualaLumpurseminarheld priorto the publicationof the Hudud Bill, of whichthe presentwriterwasa participant,anon-Muslimspeaker tatedthat "Malaysiannon-Muslims fear the imposition of the Shari'a", adding that, "if less thanenlightened and principled understanding of Islam are used to justify attitudes

" Rose Ismail,"HududLaws",New StraitsTimes,KualaLumpur,10July 1994,p. 12.



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210 ARAB LAW QUARTERLYtoward, or the treatment of, non-Muslims that fall far short of the Qur'anic ideals... how much worse - we are entitled to wonder - may things become once Shari'alaw (or rather a certain limited version or understanding of it) is enforced in thiscountry".12 Non-Muslims have raised questions as to "who will enforce it(Shari'a), in what spirit and with what breadth or otherwise of understanding ofIslam's founding Qur'anic imperatives?"13In voicing their concerns, the non-Muslim community leaders have on the whole spoken positively of the Qur'anicideals of justice and equality, and "the impressive cultural openness, inclusivenessand cosmopolitanism of Islam", but have warned against restrictive and legalisticapproaches towards the implementation of these ideals.14It may be said, in conclusion, that notwithstanding the clear text in Clause 56which confines the application of the Hudud Bill to the Muslim residents of theState of Kelantan, the next Clause (57) tends to cast doubt on, and overshadow thecontent of, that Clause. Since every person who abets, or assists or conspires orplots in the perpetration of a hadd offence stands guilty of that offence, muchwould seem to depend on the attitude of judges and law enforcement agencies ofKelantan to interpretation as to how effectively they might be prepared to confinethe application of this Bill only to the Muslim residents of that State.

Issues over rape and the proof of zinaThe Bill has come under criticism for its total silence over the problem of rape.While the Bill addressed the subject of zina it did not mention rape at all,presumably because rape has been dealt with in the Penal Code. However, the Billdid not say so and there was no attempt made to show how it proposed todistinguish zina from rape. Zina has, on the other hand, been given a broaddefinition consisting of "sexual intercourse between a man and a woman who arenot married to each other and such intercoursedid not come within the meaning ofwati syubhah" (Clause 10.1). This last term signifies intercourse in doubtful butunlikely circumstances where the man might have mistaken the woman for his wifeor acted in the belief that there was a valid marriage(Clause 10). In the absence of aprovision to separate rape from zina, the broad definition of zina in this Bill islikely to subsume rape, in which case the two offences will fall under the samerules. This is all the more likely in view of Clause 46 (2) where it is stated that, "inthe case of zina, pregnancy or delivery of a baby by an unmarried woman shallconstitute evidence on which to find her guilty of zina and therefore the hududpunishment shall be passed on her unless she can prove to the contrary". This hasthe potential of equating rape with zina. To apply the rules of zina to rape wouldmean that the rape victim must bring four male witnesses of just character to provethe charge against her attacker and if she fails to produce the necessary proof, then

12 K. Haridas,"Islamizationf StateandSociety",n NorainiOthman,ed.),ShariahLawand theModern Nation State: A Malaysian Symposium,Kuala Lumpur: Sisters in Islam, 1994, p. 99.13 Ibid.14 Ibid.



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she would herself be liable to the punishmentof qadhf."To shift the burdenofproof to the woman in the case of pregnancyor delivery of a child", as onecommentatoradded,notwithstandinghe factthat this clausehasbeenthe focus ofpublic criticism and debate,"thereappears o be a doggednesson the partof theState Governmentto retain the Clauseas it has been drafted".15The Bill has also been criticisedfor its provisionconcerningthe witnessesofzina where t is statedthat, "eachwitnessshallbe anadultmale Muslimwho is akilbaligh (adult and competent) and shall be a person who is just" (Clause 41).Women have thusbeen disqualified rombeingawitnessnot only in zinabut in allthehududoffences.Confession,whichis the onlyothermethodof admissibleproofin hudud,binds not only the confessorand not any otherpartychargedwith thesame offence- and it can, in any case,be retractedby the accusedanytime "evenwhile he is undergoing the punishment" (Clause 44). The proof of zina bywitnesses is undoubtedlyexacting,there being hardlya realisticpossibility of itundernormalcircumstances.Then confessionby the accusedpersonwhich is themore likely alternative,whetherin adulteryor in rape, is also retractableat anystageof the proceedings.The dilemmaof the rapevictim was accentuatedby yet anothercommentatorwhonotedthat it wascommonamongrapesurvivors hattheydidnot seek medicalaid immediatelyout of fear and shame.And it was not uncommonthat the rapesurvivordidnot strugglefor fearof her ownsafetyorthe safetyof others who werethreatenedwith her.16It wasfurtherstatedthatthe HududBill discriminated gainstwomenin respectof both zina andrape.We havealreadyexplained he plightof the rapevictim.Asforzina, a chargeof zinaagainsta mancan beprovedby fourmaleeyewitnessesorhis ownconfession,therebeingno otherwayof proofotherthanthis. Butzina of awoman is provable by four male eye witnesses, or her confession, or (beingunmarried)by pregnancyor deliveryof a child. In the case of a marriedwomanaccusedof zinaby herhusband he Billallowsherhusband, hrough he procedureof al-li'an, to disownthe child, in whichcase the marriagewill be dissolved even ifthe wife exercisesa counter-oath o rebutthe accusationof zina (Clauses 14 and15).17Circumstantial evidenceThe Bill has also been criticised for its provision which declared that"circumstantial vidence,thoughrelevant,shallnot be a valid method of provinga hududoffence"(Clause46). Materialand scientificevidence,like semen stains,vaginal swabs, blood samples, scratch marks, genetic fingerprinting,etc. are

15 Rose Ismail, at n. 11, supra.16 Salbiah Ahmad, "An Issue Paper of Zina and Rape under the SyariahCriminal Code (II) Bill 1993(Kelantan)", presented to a forum at the Institute of Strategic and International Studies, 19 January1993, p. 8. A summary of this paper was also reported in the New Straits Times,of Kuala Lumpur, byMazlan Nordin, 19 October 1993.17 Salbiah Ahmad, n. 16, at 7.



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212 ARAB LAW QUARTERLYthereforenot admissible as methods of proof in zina. The Bill thus rejectscircumstantial vidence as a methodof proof in zina on the one hand andthenadmitspregnancyor birth of a child - both being circumstantial vidences- asproofof zina on the other.The ulamahavedifferedas to the evidentialvalueof pregnancyn the proofofzina.The majorityof juristshaveclassifiedpregnancy s a circumstantialvidence(qarinah)ndicating he occurrenceof zina on the partof anunmarriedwomanorone who is marriedbut where herhusband s incapable f beinga fertilepartner,or when there is childbirthwithin the first six monthsof marriage.Pregnancy snot a decisive circumstantial vidence qarinah ati'ah)n thatit cannoton its ownbe thebasisof adjudication, utit is aqarinahwhich canbe rebuttedandoverruledby otherevidence.The lawthus leavesopenthepossibilityof its rebuttalandthecourtmay hear evidenceto prove thatpregnancyhas occurredwithoutzina, orthatsexual ntercoursehas occurredunderduressby mistakeor evenwithouttheknowledge of the defendant. When this is proven the hadd of zina must besuspended,and there may well be no case for any punishment,hadd,or ta'zir.Shouldthere be a possibility hatthepregnancy asoccurredwithoutpenetration,the haddpunishmentmust againbe suspended.This mayhappen,for example,when semen is planted in a womanby artificialmethods,either by her or byanotherperson,or throughsex withoutpenetration.The case will be all the morecredible f thewoman s stillfound to beavirgin.The ImamsAbuHanifah,Shafi'iand Ibn Hanbal have held that when all of thesepossibilitiesareeliminated, hewoman shouldbe asked f she has any explanation nd if she herselfclaimedthatshewaseithermistakenor compelled he haddwillbe suspended.Therewill be nohaddpunishment venif she did not makesucha claimso longas shehasnot madea full confession,for the hadd can only be enforcedby two methodsof proof,namelywitness or confession.18The majorityposition of admittingpregnancyas a circumstantial videnceisbased on the sayingof the Companion qawlal-sahabi), statementn particular fthecaliph Umarb. alKhattabwhois reportedo havesaidthat"rajms obligatoryon anyonewho commitszina, manor woman,provided hatthey aremuhsanndthat it is provenby witnesses,pregnancyor confession".'9Imam Malikhas, however,consideredpregnancyas a conclusiveproofof zinaabove the categoryof circumstantial vidence or qarinah.The emergenceofpregnancy s thus enough to invoke the haddpunishmentwithout confession.Moreover, he defendant's laimas to compulsionandmistakewillnot be enoughto suspendthe haddunless it is confirmedby supportiveevidence.The Malikijuristal-Dusuqi thus wrote that pregnancywas a proofof zina in respectof anunmarriedwomanor onewho wasmarriedbut thehusbandwasincapable f beinga fertilepartner n conjugalrelations.Thus a womanwho is married o a majbub,18

Muwaffaq l-DinibnQudamah,Al-Mughni,Beirut:Daral-Kitabal-'Arabi,1403(1983),X, 192;'Abdal-QadirAwdah,Al-Tashri'al-Jina'ial-Islami,Beirut:Daral-Kitabal-Arabi, I, 441.~9'Awdah,n. 18,at II, 441 and339.



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PUNISHMENT IN ISLAMIC LAW 213that is a man whose sexual organ is mutilated, or when a married woman givesbirth before the expiry of six months from the date of her marriage, she isregarded, to all intents and purposes, as unmarried and her pregnancy will betaken as proof of zina against her. If she claims compulsion and rape, her claim isnot to be admitted and she is liable to punishment unless her claim is supported bycircumstantial evidence such as screaming and calling for help. Signs of violence,and bleeding, from loss of virginity or otherwise, is circumstantial evidence, and sois the fact of her alerting others calmly, that is without screaming, at the time of theincident. It is then added that, "the best method of defence is for her to prove herclaim of compulsion by the testimony of witnesses.20The possibilities of accident, error and abuse are in many ways greater todaythan they were in pre-modern times. I will mention only some of the well-knownadvances in medicine, such as the availability of artificial insemination and testtube pregnancy, and of semen banks which keep alive and preserve semen for verylong periods, and the possibility also that people are often prepared to spend largesums of money either to obtain what they might want or to falsify and fabricate.Although virginity cannot survive actual childbirth, it is possible, according toexpert opinion, for sexual intercourse, and also pregnancy, to take place and thehymen to remain intact. Modern medicine has also made it possible to repair,through surgery, the hymen after perforation. The availability of modern medicalfacilities pertaining to pregnancy, pre-natal care and childbirth has meant thatwomen tend to spend more time in hospital beds and outside the homeenvironment. They are often put under anaesthetics or pain relieving drugs, andso on. Under these circumstances the possibility is even greater for sexualintercourse to take place without a woman's knowledge or even with herknowledge but in circumstances of impaired capacity. It would therefore seemrather presumptuous, and here we refer particularly to Maliki law, to regardpregnancy as a conclusive proof of zina.21

Issues over apostasy (irtidad)There are two issues over the position taken in the Hudud Bill on irtidad, firstlythat the definition of irtidad is so vague and general as to be lacking in focus andunless it is given a context, it is likely to conflict with both the Qur'an and theprovisions of the Constitution of Malaysia on the basic freedom of religion. Thedefinition of apostasy under the Bill is also broad enough to lump together avariety of different concepts such as blasphemy, apostasy, disbelief (kufr), andheresy (bid'ah), all under the same definition.The second issue is over the total neglect in this Bill of a body of opinion among

20 Sham al-Din Muhammad 'Arafah al-Dusuqi, Hashiyah al-Dusuqi 'ala al-Sharh al-Kabir, Cairo:'Isa al-Babi al-Halabi, n. d., IV, 319; see also 'Awdah, Al-Tashri', n. 18, at I, 373.21 I would like to record my appreciation to Dr Abdur Rahman of the International IslamicUniversity Malaysia's Medical Centre for an informal interview I had with him at the IIUM campus on10 September 1994.



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214 ARAB LAW QUARTERLYthe ulema that has been known to exist ever since the early days of Islam: the viewthat apostasy is not a hududbut a ta'zir offence is founded on the fact that the deathpunishment for apostasy is not a Qur'anic mandate. Similarly, the Hadith thatprovided the sole authority for the death penalty is open to interpretation- whichneeds to be provided, if it were to be enforced at all. The main Hadith on the issueis that "whoever changes his religion shall be killed".Would it then be right to say that a Jew who converts to Islam or a Hindu whobecomes a Christian should be liable to the death penalty? According to the rulesof interpretation that are expounded is usul al-fiqh, once a decisive ruling of thetext has been interpreted in some respect the ruling remains open to further levelsof interpretation.The Bill defines irtidad as "any act done or any word uttered by a Muslim whois a mukallaf, being an act or word which according to Syariahlaw, affects or whichis against the 'aqidah (belief) in Islamic religion" (Clause 23 (1)).The Bill goes on to specify that the act or word in question must be voluntaryand that there must be no compulsion. It is furtherprovided that the acts or wordsthat affect the 'aqidah must be such that concern "the fundamental aspects ofIslamic religion which are deemed to have been known and believed by everyMuslim ... pertaining to the Rukun Islam, Rukun Iman, and matters of halal (theallowable or the lawful) or haram (the prohibited or the unlawful)" (Clause 23).These expressions are all too imprecise and broad to form the basis of definition.There is also nothing in these provisions to draw a distinction between apostasyand blasphemy. The sum total of this approach would be that there will be nodifference, for the purpose of enforcing the death penalty under this Bill, betweena simple conversion which is neither contemptuous nor hostile and one whichinflames the masses of Muslims and is capable of causing bloodshed anduncontrollable civil strife.As for the Hadith just quoted, it may be specified and the death punishmenttherein may be reserved for apostasy which is accompanied by active hostility tothe community and its leadership of a kind that amounts to high treason(hirabah).22There is, in fact, authority for this interpretationin another Hadith inwhich it is clearly stated that the life of a Muslim may be taken in three cases:murder, zina by a married person, and "one who renounces his religion whilesplitting himself off from the community (mufariq il-jama'ah)".A number of prominent ulema across the centuries have taken the view thatapostasy is not a hadd offence. Ibrahim al-Nakha'i (d. 95 H) and Syfyan al-Thawri(d. 162 H) have held that the apostate should be invited to Islam and should neverbe condemned to death. The Maliki jurist Ibn al-Walid al-Baji (d. 494) and theHanbali jurist Ibn Taymiyyah have held that apostasy is a sin which carries nohadd punishment and that a sin of this kind may be punished only under the

22 Yahya b.'Ali al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar, Cairo: Mustafa al-Bab al-Halabi,n. d., VII, 218-219.



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discretionarypunishment of ta'zir.23The late Shaykh of al-Azhar, MahmudShaltut,analysed he relevantevidence n the sourcesanddrew the conclusion hatapostasy carried no temporalpunishmentbecause in referenceto apostasytheQur'anonly speaksof punishment n the hereafter.Shaltutalsoconcurredwiththeanalysisthat the key factorin the Hadith whichprescribed he deathpenaltyforapostasywas "aggressionandhostilityagainst he believersand thepreventionof apossiblefitnah (sedition,civil strife)against he religionandstate".24Mahmassanihas also made a similarobservationsaying that "the death punishmentwas notmeant to apply to a simple changeof faith but to punish acts such as treason,joiningforces with the enemy, and sedition".25It is simplyremarkablehatthe HududBill which wasdrafted,we aretold, by acommittee of prominentscholarsof Shari'a, should ignore important ssues onwhich the ulema have made impressivecontributionsof a kind that relate moremeaningfully o the contemporary onditionsof Malaysiaand beyond.To turn ablind eye to their zitihad and offer no alternativeother than unquestioningimitation can hardlybe recommended.Definition of mul.anThis is yet anotherfeatureof the Bill wherea reconsideration f the conventionalfiqhi position was called for. The Bill definesmuhsan s a personwho is "validlymarried and has experienced sexual intercoursein such marriage".A ghairumuhsans on the otherhand one who is not marriedor "is alreadymarriedbut hasnot experiencedsexualintercourse n such marriage" Clause10).It is difficultto understand hata personis a "muhsan"or the purposesof thisBill if he or she has at any time experiencedsexual intercourse, here being noreference to the current state of the marriageat the time when the offence iscommitted.It thusmatters ittle if a person,althoughoncemarried,has separatedor even divorcedandhadno accessto his/herspousefora longtime. If the logic ofimposinga severepunishmenton amarriedperson s thathe or she canhavelawfulsexual relationswith his or her spouse,then this logic canonly hold if the culprithas committedzina duringa validandeffectivemarriage.But if the reasonbehindthis punishment (death by stoning), is that the person has experiencedlawfulsexualrelations,even if only once, then it is difficultto understand he continuityof the state of ihsan in such a case.26MuhammadAbduhand his discipleRashidRida have held that the punishmentof zina is only applicable o offenderswho atthe time of committingthe offence were partiesto a valid marriage.As for the

23 Ibn Taymiyyah,Al-Sarimal-Maslul,Muhayyal-Din 'Abdal-Hamid,ed.),Beirut:Daral-Kitab,1398//1978, p. 318; 'Abd. al-Wahhab al-Sha'rani, Kitab al-Mizan, Cairo: Marba'ah al-Husayniyyah,1329H, II, 134.24 Mahmud Shaltut, Al-Islam Aqidah wa Shari'ah, Kuwait: Dar al-Qalam (c. 1963), pp. 292-293.25 Subhi Mahmassan,Arkan Huquq al-Insan fi'l-Islam, Beirut:Dar al-'Ilm lil-Malayeen,1979,pp. 123-124.26 Cf., Mohamad S. el-Awa, Punishment n Islamic Law, Indianapolis: American Trust Publications,1982,p. 19.



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216 ARAB LAW QUARTERLYoffender who has been married once but is no longer so, he or she should bepunished lightly or at most only the same as that of the unmarried offender.27The fuqaha have premised the distinction between muhsanand non-muhsanonthe somewhat exacting rationale that once a person has experienced the bounty andjoy of marriagehe is bound to be eager to safeguardand protect the sanctity of thatprecious relationship38 What about the other side of this argument:one who hasexperienced such a relationship but has seen it terminated or dissolved is likely tofind it even harder to resist the temptationAbu Zahrah has concluded from his own enquiry into this issue that there is noclear text to determine that a woman who has been divorced or a man whose wifehas died should be classified as muhsan.Abu Zahrah also refers to the views ofMuhammad Abduh and Rashid Rida and then concurs with them in saying that "amuhsan s a person who is protected, in the case of a woman, by her husband andwhen there is a separation, or divorce, she no longer qualifies as a muhsanahn thesame way as she is no longer a mutazawwijah,or a married woman".29The punishment of theftThe Bill penalises the first offence of theft with amputationof the right hand fromthe wrist. The second offence of theft is punishable with amputation of a part ofthe left foot "in the middle of the foot in such a way that the heel may still beusable for walking and standing" (Clauses 6 and 52).The leading schools offiqh have admittedly validated amputationof the left footfor the second offence. But this is disputable, and there is a minority opinionagainst it, for the simple reason that the Qur'an has not validated it. Twoprominent Companions, Ibn 'Abbas and 'Ata, are reported to have held that nofurther amputation is valid for the second (and subsequent) theft, and supportedthis by citing the Qur'anic text, "And your Lord is never forgetful" (Maryam,19:64). Ibn Hazm has strongly criticised the majorityruling here and said that it isquite remarkable that such drastic positions are taken (mainly by the Hanafis andMalikis) without there being any evidence in the sources to support them.30El-Awa's enquiry into this has also led him to the conclusion that the minorityopinion here is "nearest to the spirit of Islamic law".31Our guideline on this issueshould surely be the Hadith of the Prophet, discussed below, that if there is achoice between leniency and severity, we should, in the context of punishmentsespecially, adopt the course which leads to leniency and not otherwise.

27 Muhammad Rashid Rida, Tafsir al-Manar, 4th edn, Cairo: Matba'ah al-Manar, 1373 H, V, 25.28 'Ali Ahmad Mar'i, Al-Qisas Wa'l-Hududfi'l-Fiqh al-Islami, 2nd edn, Beirut: Dar Iqra, 1402/1982,p. 64.29 Muhammad Abu Zahrah, Al-Jarimah Wa'l-Uqubah i'l-Fiqh al-Islami:al-Uqubah, Cairo: Dar al-Fikr al-'Arabi, n. d., pp. 101-102.30 Ibn Hazm al-Andalusi, Al-Muhalla, A.G. Sulayman al-Bandari (ed.), Beirut: Dar al-Kutub al-'Ilmniyyah, 1468/1988, XII, 62; Ali A. Mansur, Nizam al-Tajrim wa'l 'Iqab fi'l-Islam, MadinahMunawwarah, Mu'assasah al-Zahra, 1396/1976, p. 331.31 El-Awa, n. 26, supra, at 6.



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The Bill has completely gnored he possibilityof tawbahor repentanceandthisissue is furtherdiscussed n the contextof tawbahbelow. It has alsonot taken intoaccount the arguments of al-Qaradawi,al-Ghazali, and al-Zarqa, about thepunishment of theft in modem society. The drafters of this Bill seem to havemerely translated al-Mawardi's,Al-Ahkam al-Sultaniyyah, with no effort atijtihadnor considerationof the realitiesof modem life in Malaysia.I have alsoquoted below Abu Zahrah,Maududi,El-Awa, and Bassiouni,all of whom raiseserious doubts as to whetherjustice would be served by the implementationofthese penaltiesin contemporaryMuslim societies.Should drinking wine be a hadd?The basic issue overshurb s thatit does not belongin the categoryof hudud,andthatthe evidenceforclassifying t underthe hududs controversial.The Bill has,ofcourse, identified shurbas a hududoffencewhich is punishablewith "whippingofnot more than eighty lashes but not less thanforty lashes"(Clause 22).Although shurbhas been declaredforbiddenin the Qur'an,the latterhas notspecified any particular punishment for it. The evidence in the Sunnah alsoindicatesthat the Prophethas not treatedshurbas a haddoffence.Drinkingwinewas a commonhabitamongthe Arabswhich is why the Qur'an nitiallyadoptedapersuasive approach advising people of the ill-effects of drinking wine andsubsequentlydiscouraged t nearer he prayer ime, and it wasonly in the thirdofthe threeseparatedayat that it wasdeclared otallyforbidden.The Prophets.a.w.also imposed differenttypes of punishmentsfor shurb,and reportsindicatethatoffenderswere in most cases subjected o beating.ReportsfurtherconfirmthatwhenAbu Bakrwas faced with the issue he askedthe Companionsbut they did not know of any precise punishment for shurb.Notwithstandingthis, and confirmationby a number of ulema, including IbnQayyim,al-Jawziyyah,Al-Shawkani,and Ibn Farhun,the majorityof juristshavenot only classifiedshurbas a haddoffence but have claimeda generalconsensus(ijma')on its punishmentto havebeen fixed at 80 lashes- which is evidentlynotthe case. In their recent writings scholars, including Mustafa Shalabi, FathiBahnasi, Salim al-Awwa,and others, have stated that the allegedijma'on shurbbeinga haddoffence is incorrectandhaveheld thatit is a ta'zir offence.The basicargumentfor this being that haddis by definitionan offence for which a fixedpunishment s prescribed n the Qur'anor Sunnah.32Whenthis is not the case,thewhole conceptof haddcollapses.Issues over qadhfClause12 of the Hudud Bill definesqadhfasmakinganaccusationof zinaagainstaMuslim of upright character which is not proven by four witnesses. The offence

32 Cf., Bahnasi,n. 34, infra, at 25; el Awa,n. 26, supra, p. 48.



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218 ARAB LAW QUARTERLYcarriesa fixedpunishmentof 80 lashesand also the offender's"testimony hallnolongerbe accepteduntil he repents".The Bill is totallysilent on the point as to whether he wishesof the victimofqadhf(maqdhuf) as any role in the enforcementof the prescribedpunishment.Accordingto the generalagreementof the leadingmadhahib,he punishmentofqadhfis not enforceableunless it is requestedby the maqdhuf nd if the latterforgives the offender,there will be no punishment.The ImamsShafi'iand IbnHanbal have held that qadhfconsistsof the violationof the rightof Man and itresemblesqisasbothof whichare amenable o pardoningby thevictim. It is also arequirementon which almost all the schoolsarein agreement hat the victim ofqadhfneeds to file a complaintagainst he offenderandit is onlythenthatjudicialproceedingscan taketheircoursewhichmightleadto the enforcement f the haddof qadhf.Butqadhfaccording o the ImamsAbuHanifahandMalikbelongsto theRight-of-Godcategoryof offences,whichmeans hatnopardonmaybegrantedbyanyoneafter the matterhas beenbrought o the attentionof the court.33It wouldundoubtedlybeargreaterharmonywith the letterandspiritof Shari'aon the subjectof hudud o open up all the avenueswherebya haddpunishmentcould be mitigatedor dropped.One such avenuewould have been to make aprovisionwhetherornot the victimofqadhfwishes thatthepunishment houldbecarriedout. Failureto do so, which is the case in the proposed Bill, marks adeparture rom the purportof the Hadithdiscussedbelow, whichprovidesthatmakingan erroron the sideof leniency s preferableo makinganerroron the sideof severity.

AN ANALYSIS OF HADD IN THE QUR'AN AND FIQHThis partof the articleexplores he validityorotherwiseof thehypothesis hatthejuristicconceptof haddwhichthefuqahahavepresentedanddeveloped ends todifferwith whatit means n the Qur'an. t is contended hatsome of the rigiditiesthatareattendant n the juristicdoctrineare not Qur'anic.Hadd in the Qur'anHadd literallymeans boundaryor limit which separatesand preventsone thingfrom intrudingon another.Fixed punishmentsareknown as hududbecausetheyaremeant to preventcrimeand signifythe limitsof whatis tolerableandwhat isnot. And thenhadd s alsoused in referenceo the crimeitself,suchas by sayingthat so and so committeda hadd.34HududAllah is a familiarexpressionwhich

33 'Ala al-Din al-Kasani, Bad'i al-Sana'ifi Tartibal-Shara'i', Cairo:Matba'ah al-Jamaliyyah, 1328/1910, XII, 62; Ibn Qudamahal-Maqdisi, Al-Mughni, Riyadh:Maktabahal-Riyadh ala-Hadithah, 1401/1981, VIII, 217; el-Awa, n. 26, supra, at p. 22.34 Cf., Burhan al-Din al-Marghinani, al-Hidayah, Cairo: Mustafa al-Babi al-Halabi, n.d., II, 94;Shams al-Din al-Sarakhsi, al-Mabsut, Beirut:Dar al-Ma'rifa, 1406/1986, IX, 36; Ahmad Fathi Bahnasi,Al-'Uqubah fi'l-Fiqh al-Islami, 6th edn, Cairo: Dar al-Shuruq, 1409/1989, p. 123.



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PUNISHMENT IN ISLAMIC LAW 219occurs 14 times in the Qur'anin the typical sense of signifying the "limits",whether moralor legal, of acceptablebehaviour romthatwhich is unacceptablein the sense forexampleof separatinghehalal andharam romoneanother.Onnooccasion has the Qur'an,however,used hadd or hudud n the specific sense ofpunishment,fixed or otherwise.When we comparethe Qur'anicusageof haddwith the use of this term infiqh,we noticethata basicdevelopmenthastakenplace,whichis thatthe term haddhasbeen reserved o signifya fixed andunchangeablepunishment hatis laiddown inthe Qur'anor Sunnah.The conceptof the "separating r preventing imit"of theQur'an s therebyreplacedby the ideaof fixed punishment.35Hadd according to its fiqhi definition is "a quantitatively ixed punishmentwhich is imposedfor a violationof the Rightof God". Haddis thus signifiedas afixed punishment in contradistinctionwith ta'zir, which is neither fixed norquantified.It is also a Rightof God in contradistinctionwithqisas justretaliation)whichis a Rightof Man. Hadd asa Rightof God signifiesa demand romGodthatrequiresfulfilment and no one thereforehas the authorityto pardonor suspendit.36Of the 14 instanceswherehudud reusedin the Qur'an,no less thansix occur injust one passageon the subjectof divorce,which is as follows.Divorce (may be given) twice. Thereafter,eitherretain(the wife) according ogoodcustom(bi'l-ma'ruf) r releaseherwithkindness.And it is not lawfulforyouto take back anythingyou have given her unless the couple fear that they maytransgressGod's limits (hududAllah). If there is fear that they may transgresshududAllah, they commitno sin if the wife willinglygives anythingback.ThesearehududAllah, do not transgress hem. Those who transgresshududAllah, theyare unjust. But if he (the husband)divorcesher, she will not be lawful to himthereafteruntil she marriesanotherman.If he (the secondhusband)divorcesher,there is no harmif the two returnto each other,. f they think they can observehududAllah.And these are the hududAllahwhichHe makesclear or a peoplewhoknow (al-Baqarah, : 229-30).The term hudud Allah carries slightly different meanings in its variousapplicationsabove. While the idea of limits may be said to be common to all, inits uses 2, 3, and 6, it refersto the specific njunctionscontained n the bodyof thetext. Uses 1, 4, and 5, do not refer to anything specifically stated, let aloneenjoined,eitherhere,or indeedelsewhere, n the Qur'an.In otherwords,when theQur'an speaks of observing hududAllah it states neither here nor elsewherespecificallywhat these "limits"are.With reference o maritalrelations, he Qur'andemandsa conduct which is inaccord with good custom (bi'l-ma'ruf).This is not to say that there areno otherinjunctionsconcerningmaritalrelations n the Qur'an,butfor the purposesof thistext, hududAllahis a generalreference o the totalconductof marital ife whichis

35 Cf., FazlurRahman,"The Conceptof Haddin IslamicLaw",IslamicStudies4 (1965),p. 237.36 al-Marghinani, . 34, supra,at d. II, 94;al-Sarakhsi, . 34, supra,at IX, 36.



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220 ARAB LAW QUARTERLYconveyedby the termbi'l-ma'ruf.The contentof good customin this context isthus includedin the generalmeaningof hududAllah.Two morepointsto note in this passageare:firstlythatthe term hududhas noreference o punishment,but is concernedmainlywith a moral situationwhichmayormaynot havelegalimplications.Secondly, he contentof "goodcustom" sevidently iableto changeand doesnotfit in with the idea of a fixed andinvariableprovision.This must alsoimplythatthe contentof hududAllah is variable o thatextentand thatit is conceptuallyamenableo comprising hangeable rovisions.37In two otherplaces(al-Baqarah, : 187andal-Talaq65:1)the termhududAllahis concernedwith maritalrelations; he first with conjugalrelationsduringthefastingmonthof Ramadan ndthe secondwiththewaitingperiod(i.e. 'iddah) hatthe wife must observefollowinga divorce.The text in bothplaceswarnsagainstviolatinghududAllah.Elsewhere heexpression ccurs n a passagewherethe textrecommendskindnessto the orphansandthe needyand specifiesfixed shares ninheritance or legalheirs,and then declares hatthese arethe hudud Allahthatmust be observed(al-Nisa,4:12-13).HududAllahalso occurs in the Qur'an n reference o atonement kaffarah)nconjunctionwithzihar.This is a formof divorce,originally pre-Islamicpractice,wherethe husbanddeclareshis wife to be unlawfulto him 'likethe back of hismother".The kaffarah hatthehusbandneeds to observe n theeventof resumingmaritalrelationsconsistsof one of thefollowing hree: o releasea slave,to fastfor60 consecutivedays,or to feed 60 poorpersons.The text thenproceeds o declarethat "these areGod'slimits (hududAllah)andfordisbelieverss a painfultorture(al-Mujadilah,58:3-5). It is of interest to note here the use of hududAllah inreferenceto a specificbut self-imposedpunishmentwhich does not involve theenforcementauthoritiesbut only the individualhimself.Moreover,by suggestingalternative tonements orzihar the Qur'an eems to admitthe ideaof alternative/variablepunishment or hududAllahin line withthe abilityandconditionof thepersonswho observethe kaffarah n question.The "Divine Limits" (hududAllah),according o Maududi,consist of certainprinciples,checksandbalances,andspecific njunctionsn different pheresof life- and they have been prescribed n order that man may be trainedto lead a

balancedand moderate ife. They areintended o lay downthe basicframeworkwithinwhichmanis free to legislate,decidehis own affairsandframesubsidiarylawsand regulations or his conduct.38It is thus evidentthat the Qur'anic onceptsof hududandhududAllaharenotmeantto consist of punishments,norof purelypunitiveandmandatory anctions.They are used in the Qur'anto implya set of broadmoraland legal guidelineswhichmust be observedand upheld.The basicconcern s clearlywith the morallimits of conduct n the sense of identifyingwhat s generallygoodandrighteousasopposedto thatwhichmust be avoidedanddiscouraged.37 Cf., Fazlur Rahman, n. 35, supra, at 238.38 S.A.A. Maududi, The Islamic Law and Constitution,Lahore: Islamic Publications Ltd, Reprint,1979, p. 142.



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The Qur'an's emphasis on repentance (tawbah)In virtuallyall the four instanceswherethe Qur'anspecifiesa punishmentfor anoffence,thereis also aprovisionforrepentance, orgivenessandreformation.Thisis a consistent feature of the penalphilosophyof the Qur'anwhichhas, however,not been adequatelyreflectedin the juristicdoctrineof thefuqaha,nor indeed inthe Hudud Bill of Kelantan.Notwithstanding he dual emphasisthat the Qur'anlays on punishmentand repentance, uristicdoctrinepays undividedattentiontothe enforcementof punishment so much so that once the offender has beenconvicted of a hadd offence repentanceis of no account and no one has theauthority o pardonhim. But we reada differentmessage n the Qur'an.Thus thetext (al-Ma'idah,5:38-39) whichpenalisesthe thief with mutilationcontinuestoprovide, "But if the thief repentsafterhis crimeand amendshis conduct, Godredeemshim. God is forgiving,most merciful".The referenceto repentancein the text is immediately ollowed by the word'aslaha' (reforms himself) and the two togetherwould seem to requirethat theconvict should not only be given time in which repentanceand reformationcanoccurbut also thatthis shouldbe facilitated,on a selectivebasisat least,by positiveincentives.Abu Zahrahwrote in a commentaryhat the Qur'anic ext on theft begins with'al-sariq wa'l-sariqah'and these are adjectives,not verbs, and adjectivesdo notmaterialisein a person without a measureof repetition. A person is not, forexample,described as "generous","honest",or "liar",merelyby a single act ofgenerosity, honesty, or lying. These adjectivescarrytheir full meanings whenthere is recurrenceand repetition.The ayahdid not beginby saying,for example,that theft is punishablewith such andsuch a punishment; f refers nstead to sariqand sariqah.When we read the ayah from this perspective, hen the punishmentthat it conveys should apply to recidivists but not to first time offenders.Accordingto a reportwhenthe Caliph'Umaral-Khattabdecided to mutilate thehand of a young offender, his mother said: "pardonhim O Commanderof thefaithful,because t washis first time".To this the Caliphresponded,"Allah s toomercifulto reveal the nakednessof His servant or his first failure".Abu Zahrahhas also discussed,in this connection,the issue of repentancewhere he observedthatthe wordingof the text beforeus is suchthatrepentance anonly find a logicalplace in it, if it is given an opportunitybeforethe impositionof punishment.Thishe adds is not the view of the majoritybut it is a viewthatis sustainableby the textand some ulema have in fact arrivedat this conclusion.39The Qur'anicemphasison tawbahcan also be seen it its ayat on adulteryandslanderousaccusation(al-Nur, 24: 2-6) respectively:reference o punishmentineach caseis immediately ollowedby "unlesstheyrepent hereafter ndmendtheirconduct" and "except for those who repentthereafterand reformthemselves".And then with reference to highway robbery, we also note that the text expounds

39 Abu Zahrah, Al-'Uqubah, n. 29, supra, pp. 134-136.



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222 ARAB LAW QUARTERLYthreetypesof punishments or thiscrimeand thenimmediately rovides:"Exceptfor thosewhorepentbeforetheyfall intoyourpower.In thatcase know thatGodis forgiving,most merciful".It is thus evidentthat the Qur'an eaves he doorof reformation ndrepentanceopen in all of the hududoffences withoutany exceptionor reservation.To denythis opportunity s clearlytantamounto overrulingwhatis conveyed n the cleartext.Juristic views on repentanceThe jurists have held three different views on repentancewhich may besummarised s follows:

(1) The first view maintains hat repentance uspendsthe prescribedpunish-ments, if it is offeredpriorto the completionof the offence and that theoffence n questionbelongs o therightof Godcategoryhudud.Somejuristsof the Shafi'iand Hanbalischoolswho subscribe o this viewhavedone soby way of analogy to highwayrobbery(hirabah). t is thus arguedthathirabah s the most seriousof all crimesand if repentancen this crimeisadmissible,as is stipulatedin the clear text, then the argumentfor itsadmissibility s even stronger n lessercrimes,namelyof zina, shurb,andtheft. The proponentsof this view havealsoreferred o a Hadith in whichthe Prophet has said: "One who repentsfor a sin is like one who hascommittedno sin". It therefore ollowsthatone whois not guiltyof a sin isnot liableto its punishment ither.The Prophethasalsosaidconcerningherenowned case of Ma'iz b. Malik,when he was informedthat Ma'iz ranaway(whilebeing stoned forzina):"Didyou not leavehim alone to repentso thatAllahwouldhavegrantedhim a pardon?".4"mongthe proponentsof this view some have furtherelaboratedhat repentance,n orderto beadmissibleandconvincing, houldbeaccompanied y correction n conductandthis wouldrequire ime (somesuggesta periodof six months,whereasothers only say a long time) in which the sincerityof repentancecan beascertained nd testified.41(2) The secondview, which is held by the ImamsMalikandAbu Hanifahaswell as some Shafi'i and Hanbalijurists,has it that repentancehas nobearingon the hudud,except n the case of highwayrobberywhichis basedon clear ext. This viewis premisedontheargumenthatthewordingof theQur'anicayahconcerning hepunishment f zinaandtheft aregeneral 'am)whichmust applyto repentersandnon-repenters like.The proponentsofthis view maintain somehow that the referencesto repentancein theQur'anicayat on theftandadulteryareconcernedwithrepentance fterthe

40 Cf., Ibn Qudamah,AI-Mughni, n. 33, supra,at I, 316; Awdah,Al-Tashri', n. 18,supra,at 1, 353:Abu Zahrah, al-'Uqubah, n. 29, supra, at 250.41 Ibid.



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imposition of punishment and not before. To this it is further added thatwhen the Prophet ordered stoning in the cases of Ma'iz and al-Ghamidyyah,or when he adjudicated in certain cases of theft, on the basis of confession,the offenders in these cases had all shown signs of repentance as many ofthem had said that they wished to be purified of their sins but that theProphet nevertheless enforced the hadd punishment on them.42(3) The third view, which is mainly attributed to Ibn Taymiyyah and his

disciple Ibn Qayyim al-Jawziyyah, has it that punishment purifies one fromcriminality and sin, and so does repentance. That punishment should besuspended when the perpetrator of a Right of God offence repents and in themeantime does not himself insist that only punishment can purify him of hisguilt. But if he does so insist, then he or she may be punished even afterrepentance. Hence, when the perpetrator of a hadd offence repents prior tocompleting the crime, he or she will not be punished if the offence inquestion is a public right, or Right of God, offence, provided also that theoffender does not demand to be punished.43

When we look at the evidence in the Sunnah we find that the Prophet has onmany occasions tried to persuade individuals who had confessed to a hadd offenceto retract their confession and find a way out for them of their punitivepredicament, presumably because confession is often indicative of repentance andthe Prophet s.a.w. has positively encouraged it. Notwithstanding this, only in thecase of apostasy can it be said that repentance has found a place in the juristicdoctrine, but only just so, because imposing a strict time limit of three days (cf.Clause 23[3] of the Hudud Bill) within which the offender must repent is reallyreducing the concept of repentance into a mechanical formality that is almostmeaningless.Juristic thinking over the hudud were caught, as from early times it seems, in aweb of technicality, partly because of linking the hududwith the binary division ofrights into Rights of God and Rights of Man in a manner that created moreproblems than otherwise. Juristic developments in this areahave followed a coursewhich seems to have made it difficult to integrate the Qur'anic outlook onrepentance and reform to the underlying philosophy of hudud.It seems that the Qur'an's repeated emphasis on repentance has caught theattention of Ibn Hazm who wrote in a distinctly different tone of language to thatof the majority of ulema. Thus, according to Ibn Hazm:Since repentances ordainedby God and it is highlyrecommended,t is obligatoryon allMuslims(kana ardan'ala kullmuslim)o invoke t in accordancewith the injunctions al-nusus)hatwerediscussed.Henceinviting he offender o repentprior o the enforcement f

42 Ibn Qudamah,Al-Mughni, n. 33, supra, X, 316; Ala'uddinal-Kasah,Bada'i' al-Sana'i', n. VII,96.43 Ibn Qayyimall-Jawziyyah,'lam al-Muwaqqi'in,MuhammadMuniral-Dimashqi ed.), Cairo:Idarahal-Taba'ahal-Muniriyyah, . d., II, 97-98; 'Awdah,Al-Tashri',n. 18,supra,at I, 355.



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224 ARAB LAW QUARTERLYhaddis an obligationand diligencein it is a duty ..... If the Imamfailed to invite theoffender o repentpriorto enforcement, ninvitationo repentancehouldstill beextendedafter the enforcement f hadd.44

If we were to extend the juristic concept of hadd to the broad Qur'anicphilosophy of reformation and repentance, we would have to depart from thenotion of fixed and mandatory provisions of universal application. It would bepossible perhaps to combine the Qur'anic directives on reformation andrepentance with the notion of fixed penalties, or a range of quantified penalties.It would be difficult, however, to integrate into this approach the notion of bothfixed and mandatory sentences that are totally closed to the attendant conditionsand circumstances of individual offenders.

Hadd and haqq Allah in the juristic expositions of fiqhAs already indicated the ulema have defined hadd as a fixed punishment imposedfor violation of the Right of God. The Hudud Bill also describes hudud as"offences, the punishments of which are ordained by the Holy Qur'an and theSunnah", and then it further specifies that the hududpunishments, "shall not besuspended, substituted for any other punishment, reduced or pardoned orotherwise varied or altered" (Clause 48). The other two categories of offenceswith which this Bill is exclusively concerned are qisas and ta'zir offencesrespectively.By defining hadd as a fixed punishment ('uqubahmuqaddrah)t is meant that thepunishment is invariably specified and fixed, and not fixed, as it were, in the senseof fixing the minimum and maximum limits thereof. In ta'zir punishment theauthorities are entitled to exercise discretion as to determining the type andquantity of punishment. Protecting the vital interest of the community may be saidto be the basic objective of all punishment, including qisas,diyyah, and ta'zir, yetwhile this is generally acknowledged, it is suggested that compared to the hudud,offences in these other categories are not crucial for protecting the basic fabric ofsociety, and that they relate more closely to the rights and interests of individualsthan that of the community as a whole.45'Abd al-Qadir 'Awdahmerely expoundedthe conventional view when he wrote that theft, shurb,highway robbery, rebellion,zina, and apostasy pose a greater threat to society than the pain and grief thatmight be inflicted on victims. The victim of theft may lose his property but hisgrief is relatively less than the threat of terrorand insecurity that is inflicted on hisneighbours and fellow citizens. As for crimes such as "murder and injury, theyaffect individuals more than society and these are to some extent personal crimes inthe sense that their perpetrators do not face everyone they meet with violence butconfine their aggression to a particular individual".46The rationale we are faced

44 Ibn Hazm, al-Muhalla, n. 30, supra, at XII, 36.4 'Awdah, Al-Tashri', n. 18, supra, at I, 76 and 620.46 Ibid., p. 621.



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PUNISHMENT IN ISLAMIC LAW 225with here does not reallybearout and wouldin anycase seemto have lost muchofits relevancein conjunctionwith contemporary ocial realities,for it is hard tounderstand he assertion hat killingandbodily injuryrepresenta lesser threattosociety than such other crimesas zina and qadhf.When we look at the hudud as a separate category of punishment incontradistinctionwith qisas,we are remindedof the conditionsthat prevailed nthe tribalsocietyof Arabiaat the time of the adventof Islam,in which the scopeand mannerof the applicationof qisas,wherepersonalvendettaandtribalisturgefor revengeneededto be checkedandcontrolled.The emphasiswasclearlyon theobjectivityof justice independentof tribalist and sectarian nterests.The hududwould appearto have served this purposein that they took the law in regardto acertainnumberof crimes out of the scope of tribaljusticeand the messagewasclearly conveyed that these are not open to negotiation, compromise andpardoning. But when we consider that the course of history has altered thepicture and that changes have taken place as a result of such developmentsasurbanisation on a massive scale, communications,and modern methods ofgovernmentetc. - we find that the basic rationaleof the earlydistinctions hasbeen substantiallyeroded.Whilecriminalityremainsa seriousthreat to the fabricof modem societyand civilisation, hereis no compellingargument o confinethisonly to a handfulof specifiedor unspecifiedcrimes.The changingconditionsofsocietyhaveneverceasedto generatenew problems,new opportunities or crime,andunprecedentedvarietiesof criminalconductwhichareoftenno less of a threatto the basic fabricof societyand its values as the hududcrimes.Basicallyall rights in Islam, as the Maliki juristal Qarafipointed out, consistprimarilyof the Rightof God, which are in turnexercisedandrepresentedby thecommunityof believersand theirlawfulgovernment.47We mayconclude hereforethat all crimesconsistof theviolationof the limits of God,thehududAllah,and thatthe communityand its leadershipare within their rights to take all necessarymeasures o defendtheircommon nterestsagainstcriminality ndviolencewithoutthe need to drawhardand fast divisionsbetweenpublicandprivate nterests.Wemayalsosaythatthereremainsno urgentneed fordistinguishinghe Rightof Godfrom the Rightof Man,norof hudud rimeson thisbasisalone,fromotheroffencesthat areequally f not morethreateningo publicsecurityandinterest.

QUESTIONS OVER THE PUNISHMENT OF ZINA

A statement of issuesThe ulema of the leading madhahibhave disagreed on the subject of ihsan(protection) and its effects on the punishment of zina. Questions have arisen as to

a7Shibahal-Din al-Qarafi,Kitabal-Furuq,Cairo:Matba'ahDar al-Ihya'al-Kutubal-'Arabiyyah,1346H, p. 141.



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226 ARAB LAW QUARTERLYthe validity or otherwise of rajm(stoning) for zina side by side with the Qur'anicpunishment of flogging. There is also disagreement as to the combination ofdifferent punishments, namely of rajm, flogging, and banishment with oneanother. The majority have held that the punishment of zina in the case of amuhsan a marriedMuslim) is death by stoning (rajm)as laid down by the Sunnah,and it is 100 lashes for an unmarriedperson, or aghayr muhsan,which is prescribedin the Qur'an. The variant opinion on this subject, as I shall presently elaborate,maintains that the Qur'anic punishment of 100 lashes applies to everyone, muhsanand non-muhsanalike.The first view is based on the evidence that the Prophet has applied rajmin thewidely reported cases of Ma'iz b. Malik and al-Ghamidiyyah. This is furthersupported by the fact that the Pious Caliphs have applied the punishment ofstoning, and their precedent is generally seen as conclusive evidence on thecontinued validity of this punishment.The variant view is based on the analysis that the Qur'an has provided for auniform punishment of 100 lashes and it is totally silent on rajm.Had Allah s.w.t.intended to validate rajm as a punishment, the Qur'an would have made areference to it. The proponents of this view have rejected the evidence in theSunnah by saying that the reported instances of rajmactually took place prior tothe revelation of the Qur'anic provision in Surah al-Nur (24:2) which prescribedthe punishment of flogging. If this is accepted it would mean that the Qur'anicprovision on flogging had in effect abrogatedrajm.Then there is the argument thatthe evidence in the Sunnah is all in the form of solitary (Ahad) Hadith, and the factthat there is inconsistency and conflict in the contents of these ahadith only servesto aggravate the situation further.To discuss all the relevant ahadith would be beyond the scope of this article. Ican only state that some of the ahadithreportedin al-Ghamidiyyah's case contain areference to banishment (al-taghrib) as a supplementary punishment to rajm butthat this element is absent in other ahadith concerning the same case. There is asimilar discrepancy in the ahadith on the question of combining rajmrespectivelywith flogging and banishment. In some reports flogging seems to have beenapplied as a supplementary punishment to rajm but there are other ahadith inwhich rajmis mentioned as the only punishment without making any reference toflogging.48Ali Mansur, the author of Nizam al-Tajrim wal-'Iqab fil-Islam, a formerPresident of the Constitutional Court of Egypt and Chairman of the Committee onthe Harmonisation of Shari'a and Law wrote that: "Muhammad Abu Zahrah, whois one of the leading ulema of Shari'a this century has sent to me in writing hisopinion on the subject of stoning where he concluded that the evidence for this

48 For a discussion of the relevant ahadith on the punishment of zina see al-Shawkani, Nayl al-Awthar, VII, 97-100; see also for these and other ahadith, Jamal al-Din al-Zayla'i, Nasb al-Raya li-Ahadith al-Hidayah, 2nd edn, Beirut: Al-Maktab al-Islami, 1393 H, III, 328-383; al-Sarakhsi, al-Mabsut, n. 34, supra, at IX, 36ff.



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punishment was doubtful and it was thereforepreferablenot to apply it".49Mansur added that Abu Zahrah expressed his views in a conference in theMoroccan city of Dar al-Bayda on the 22nd of Rabi al-Awwal 1392 H,corresponding o 6 May 1972. Abu Zahrah'sviews on this issue have also to alarge extent appeared n his own book (publishedearlier n 1959) which may besummarisedas follows:(1) There is no disagreementamongthe juristsand ulemaof the four leadingmadhahibhatthepunishmentof floggingforzina,prescribedn the Qur'an,appliesto unmarriedmen andwomen who are referred o in the Qur'anasghayr muhsan.The majority(jumhur)of jurists have added that a malefornicatoris also liable to banishment,that is removal from society, or

imprisonment, or a yearso that he is not ostracised or what he has doneand that in the course of time peoplemay forgetaboutit. ImamMalik hasheld thatbanishmentshouldnot applyto womenconvictedof zina for fearobviouslyof immoralityand corruption.50(2) As for thepunishmentof stoningforamarriedperson,Abu Zahrahrefers othe relevantahadith.But thenhe notesthat allof theseahadithareAhadandthe mere factthatthereareseveralof themdoes not elevatethem to the rankof mutawatir.Only the mutawatir nspires conviction and precludes thepossibilityof lying and doubt in the transmissionof Hadith.(3) Abu Zahrahdrawsattentionto the Hadith recorded n Sahih al-Baukharithat one of the Followers(tabi'un)askeda mujtahid mongthe Companionswhether the Surahal-Nur, which prescribedthe punishmentof flogging,was revealedbeforetheahadithon stoningor whether hese lattercameafterSurahal-Nur.The Companionanswered hat he did not know.The personwho asked he questionwasal-Shaybaniand the CompanionwasAbd AllahIbn Abi Awfa.51The ulema of Hadith have, however, attemptedto resolve the doubtraised in this report by saying that the ahadithof rajmcame after therevelationof Surahal-Nur andthereforeabrogated he latter,whichis why'Uma al-Khattabactedon the rulingof these ahadith.

(4) At this point Abu Zahrahrelatesthe views of the Kharijites,some Shi'ahand Mu'tazillah o the effectthatthere is no otherpunishment orzinaotherthanflogging.They havefurtherargued hatstoning s themost severeof allpunishments, it should thereforebe proven by decisive evidence, that iseitherthe Qur'anor Hadithmutawatir,and all the ahadithor rajm all shortof mutawatir.Added to this is the doubt expressedby a Companionas towhether the stoning of Ma'iz and al-Ghamidiyyahprecededor succeeded

49 Mansur, Nizam, n. 30, supra, at 181-182.50 Ibid., pp. 182-183; Abu Zahrah, Al-'Uqubah, n. 29, supra, at 98 ff.51 Sahih al-Bukhari, Muhsin Khan's trans. at VII, 527, Hadith 804; Abu Zahrah, Al-' Uqubah,n. 29,supra, p. 100; Mansur, Nizam, n. 30, supra, pp. 182-183.



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228 ARAB LAW QUARTERLYthe Qur'anic text in Surah al-Nur. Rajm as a punishment thus collapses onthe basis of the rule that doubts invalidate the hudud.52

Ali Mansur added that another prominent jurist, Professor Mustafa al-Zarqa,was present at the same conference and heard Abu Zahrah's views on the subject ofrajm:He too (al-Zarqa) sent his opinion in writing to me to the effect that stoningas a punishment in zina should not be enforced, not because of the doubt in theauthenticity of Hadith but because it is quite possible that stoning was imposed asa ta'zir punishment. A1-Zarqathen added that this was also the opinion of ShaykhMahmud Shaltut. The text of al-Zarqa's letter contained the following:In myview there s a distinctpossibility hattheProphet .a.w.ordered ajm, n therelatedincidentsby waynot of haddbut of ta'zirpunishment.Forhe saw under he circumstancesthatonly a stronganddecisivestandon this issue couldcurbthe rampantmmorality ndcorruption f the time of ignorance.The lawfulgovernment ndthe ulual-amrarewithintheir rightsto introduceta'zir punishment n their efforts to combatcriminalityand tosecurebenefit for the community.It is likelythat the Prophets.a.w. also exercisedhisauthorityn this wayandintroduced ajmas a ta'zirpunishment.53

Our review of the evidence in the ahadith tends to confirm al-Zarqa'sobservation. For a period of time when there was no definitive ruling on a fixedpunishment for zina, that is prior to the revelation of Surah al-Nur in the year 4 or5 Hijrah, it would appear that rajm was not a hadd punishment. If there wereinstances of its application around that time it was clearly on a discretionarybasis.Supposing that the Prophet employed rajmin those years by recourse to the rulingof the Torah, that by itself would not render it into a hadd punishment either andit would still be reasonable to think that it was applied on a discretionarybasis untilthe revelation of Surah al-Nur. Whether the Qur'anic hadd was subsequently andpartially abrogatedor specified in a certainway and how this was done, whether bythe Qur'an itself or by the Sunnah, and in what chronological order, are among thewidely debated questions, and the answers they have received are not totallydevoid of uncertainty and doubt.

ISLAM AS A TOTAL SYSTEM

The implementation of hudud is generally seen as a necessary component of theIslamic resurgence movement and it is, as such, by no means confined to Kelantanor to Malaysia. A number of prominent scholars have spoken on the subject and Ipropose here to review the salient points of what they had to say. There are thoseof course who maintain that the implementation of hududoffers a good answer to

52 Abu Zahrah, n. 29, supra, pp. 100-101: 'Awdah, Al-Tashri' n. 18, supra, II, 380. See also al-Sarakhsi, Al-Mabsut, n. 34, supra, at IX, 45.53 Mansur, Nizam al-Tajrim, n. 30, supra, at 182-183. Despite my effort locate al-Zarqa's viewsindependently in his own writings, my search was unsuccessful.



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the problemof risingcriminalityandthat, in anycase,Muslims haveno choice inthe matter of implementingGod's law. We have also seen, on the other hand, ageneral expressionof concern that implementing he hududunder contemporaryconditionswhere the individual s surroundedby an endlessseriesof temptationsmightamountto oppressionandinjustice.It is widely accepted hatIslamis a wayof life and if implemented n its entirety,thatby itself tends to operateas a majordeterrenceagainstcrime.Butto saythatone canachieveIslamiccriminal ustice nan alien environmentis not only

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