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Crime and Punishment in Islamic Law: a Fresh Interpretation Ii Iii i Crime and Punishment in Islamic Law: A Fresh Interpretation ii iii Crime and Punishment in Islamic Law: A Fresh Interpretation z MOHAMMAD HASHIM KAMALI بسم ا لله الرحمن الرحيم 1 iv 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Mohammad Hashim Kamali 2019 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging- in- Publication Data Names: Kamali, Mohammad Hashim, author. Title: Crime and punishment in Islamic law : a fresh interpretation / Mohammad Hashim Kamali. Description: New York, NY : Oxford University Press, [2019] | Includes bibliographical references and index. Identifiers: LCCN 2018037058 (print) | LCCN 2018038098 (ebook) | ISBN9780190910655 (updf) | ISBN 9780190910662 (epub) | ISBN 9780190910679 (online resource) | ISBN 9780190910648 (hardcover : alk. paper) Subjects: LCSH: Criminal law (Islamic law) | Punishment (Islamic law) | Criminal law— Islamic countries. | Crime— lslamic countries. Classification: LCC KBP3791 (ebook) | LCC KBP3791 .K33 2019 (print) | DDC 345— dc23 LC record available at https:// lccn.loc.gov/ 2018037058 1 3 5 7 9 8 6 4 2 Printed by Sheridan Books, Inc., United States of America v Contents I. Introduction 1 PART ONE: Shariah Perspectives II. Islamic Criminal Justice: An Overview 17 III. Ḥudūd in the Qur’an, Sunnah, and Fiqh 21 Ḥudūd in the Qur’an 21 Repentance and Reform (Tawbah, Iṣlāḥ) in the Qur’an 27 Juristic Views on Repentance 32 Ḥudūd in the Sunnah 41 Ḥudūd in the Juristic Expositions of Fiqh 49 Legal Maxims on Ḥudūd 58 IV. Prescribed Ḥudūd Crimes 60 Preliminary Remarks 60 V. Zinā (Adultery and Fornication) 63 Meaning and Attributes of Zinā 63 Proof of Zinā by Witnesses and Confession 65 Issues over Rape, Its Evidence, and Proof 67 Definition of a Guarded Person (Muḥṣan) 74 Issues over Stoning, Doubtful hadiths, and Abrogation 77 Modern Opinions on Stoning 84 Homosexuality, Incest, and Lesbianism 90 vi vi Contents VI. Theft (Sariqah) 96 Theft from Relatives 97 Issues over the Quorum (Nisāb) 98 Issues over Safekeeping and Ownership 102 Proof and Punishment of Theft 105 Repentance and Its Impact on Punishment 107 VII. Banditry and Terrorism (Ḥirābah, also Qaṭʿ al- Ṭarīq) 111 Definition and Meaning of Ḥirābah 112 Ḥirābah in the Qur’an and Sunnah 113 A Fiqh Discourse on Ḥirābah 115 Punishment of Ḥirābah 118 Repentance in Ḥirābah 121 Suicide and Suicide Bombing 122 Terrorism Then and Now: A Survey of Contemporary Opinion and Research 127 Muslim Responses to Global Terrorism 132 Ḥirābah in the Qur’an Revisited 137 VIII. Issues over Apostasy (Riddah) 141 Review of the Source Evidence 142 Juristic Opinion on Apostasy 145 Apostasy in Malaysia: An Overview 147 IX. Slanderous Accusation (Qadhf) 150 X. Issues over Wine Drinking (Shurb) 157 XI. Enforcement of Ḥudūd Punishments: Procedural Constraints 166 XII. Philosophy of Ḥudūd 176 Deterrence and Expiation in Ḥudūd 177 Retribution and Retaliation 181 Rehabilitation and Reform 183 XIII. Discretionary Punishment (Taʿzīr) 186 XIV. Judicious Policy (Siyāsah Sharʿiyyah) 195 XV. Just Retaliation (Qiṣāṣ) 201 XVI. Blood Money (Diya) and Financial Compensation 213 vii Contents vii XVII. Doubt (Shubha) and Its Impact on Punishment 225 XVIII. Islam as a Total System 231 PART TWO: Islamic Criminal Law in Malaysia Introductory Remarks 241 XIX. Hudud Bill of Kelantan 1993: An Overview 243 XX. Hudud and Qiṣāṣ Bill of Terengganu 2002 248 XXI. Problematics of the Ḥudūd Bills 253 Constitutional Issues 253 Position of Non- Muslims 257 XXII. Ḥudūd Debate Continued: An Update 2012– 2017 260 PART THREE: Islamic Criminal Law in Other Muslim Countries XXIII. Introductory Remarks 269 XXIV. Qanun Jinayat of Aceh, Indonesia 276 XXV. Shariah Penal Code of Brunei Darussalam 284 XXVI. Islamic Criminal Law in Saudi Arabia 288 XXVII. Shariah Punishments in the Islamic Republic of Afghanistan 295 XXVIII. Islamic Republic of Pakistan 301 XXIX. Islamic Republic of Iran 306 XXX. Republic of Nigeria 310 XXXI. Republic of Sudan 315 XXXII. Islamic Republics of Mauritania and Maldives, and Islamic State of Yemen 321 Islamic Republic of Maldives 323 Islamic State of Yemen 325 viii viii Contents XXXIII. Libya, United Arab Emirates, and Qatar 329 Libya 329 United Arab Emirates 330 Qatar 332 XXXIV. Conclusion and Recommendations 334 Acknowledgements 347 Appendix 349 Notes 365 Glossary 405 References 411 Index 423 1 I Introduction This book essenTially consists of a presentation of issues and reform proposals regarding the prescribed punishments of ḥudūd in Islamic criminal law. But the discussion is not confined to ḥudūd as such and also delves into other concerns relating to crimes and punishments in sha- riah. Two main topics are discussed in this book: first, issues that relate to presenting a holistic reading of the Qur’an and hadiths on ḥudūd punish- ments, just retaliation (qiṣāṣ), and the discretionary punishments of taʿzīr; and second, issues that are encountered in modern-day applications of Islamic criminal law. The first of these subjects, which is addressed in part one of the book, is the main preoccupation and takes up about two- thirds of this volume. Parts two and three examine the applied aspects of Islamic criminal law in a number of Muslim countries. An overview of ḥudūd laws in the Muslim world today reveals many issues relating to perception. The Muslim masses tend to see ḥudūd laws and punishments as the core feature of Islam and the Islamic revivalist agenda. Ḥudūd laws are generally not enforced, or if they are enforced it is only selectively. Yet there is persistent debate over ḥudūd laws and even demand for their enforcement in many parts of the Muslim world. A number of Muslim countries and jurisdictions have consequently at- tempted to address ḥudūd- related issues, and those of Islamic criminal law generally, within their own set of possibilities and conditions. Islamic regimes that come to power as a result of a revolution or coup d’état “need to demonstrate immediately that they are making a start on the construc- tion of a real Islamic state by implementing Islamic criminal law.”1 This 2 2 inTroducTion book attempts to present a picture of these developments, insofar as the present writer was able to construct this view within limitations on secur- ing accurate information about sensitive religious issues. Obtaining ac- curate information presents a difficulty due to prevailing uncertainties over ascertaining true positions. Ḥudūd laws have become increasingly politicised, and thus politicians often skirt around religious issues just as they also stop short at exploring the jurisprudential dimensions of pun- ishments. The reticence of politicians may also be due to their wish to not heighten concerns of non-Muslim segments of their populations. This has often meant that issues do not find effective responses, which is why it seems there are continuing debates about ḥudūd in many Muslim countries, some running over decades, without the emergence of clear responses. Misunderstanding and uncertainties tend to linger on; critics would even say, in Malaysia for instance, that debates on ḥudūd laws are kept on the back burner until election time, when they are revived because it is politically convenient. Juristic attitudes toward ḥudūd laws are also heavily influenced by the view thatḥ udūd laws are determined by clear injunctions in the Qur’an and are therefore not amenable to juristic re- construction and ijtihād. All of this has helped ḥudūd laws to remain as a mainstay of imitative scholarship (taqlīd) such that even leading schools of law have balked at exercising original thinking and ijtihād over them. The issues at hand are longstanding and demand a blended approach that is informed by relevant factors, even venturing outside the jurisprudential aspects of a subject if the quest for relevant answers is to be meaningful and to advance out of the prevailing impasse over Islamic criminal laws in the Muslim world. Muslim countries and jurisdictions have generally shied away from the enforcement of ḥudūd punishments due to their apparent severity. Yet be- cause of public sensitivities and politicisation of the subject, parliamentar- ians, judges, and jurists have also not shown a willingness to depart from hallowed precedents in favour of a fresh and holistic understanding of Qur’anic dispensations on ḥudūd. This naturally makes the challenge of adjustment and reform even more difficult to address. That said, the main thrust of this book is to offer a fresh interpretation of the sources of shariah on the key issues discussed herein and to show how the Qur’an and Sunnah can open a path to possible reform of Islamic criminal law. It hardly needs to be emphasised that a receptive climate of opinion should exist on the part of religious and political leaders to ijtihād- based responses over issues. To those who take a position that ijtihād does 3 Introduction 3 not proceed when there is a textual injunction,2 it may be said that one would need to understand the textual injunction in the first place before saying that it is definitive qa( ṭʿī) and close therefore to ijtihād.
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