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Reforming Hudud Ordinances to Reconcile Islamic Criminal Law with International Human Rights Law ______ UNIVERSITY OF CAPE TOWN REFORMING HUDUD ORDINANCES TO RECONCILE ISLAMIC CRIMINAL LAW WITH INTERNATIONAL HUMAN RIGHTS LAW ___________________________________________ Mark A. Gabriel GBRMAR004 University of Cape Town Thesis presented for the degree of DOCTOR OF PHILOSOPHY in the Department of Public Law, Faculty of Law, University of Cape Town July 2016 Supervisor Professor Waheeda Amien The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgement of the source. The thesis is to be used for private study or non- commercial research purposes only. Published by the University of Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University of Cape Town © Mark A. Gabriel –– Ph.D. Research –– University of Cape Town DECLARATION I, Mark A. Gabriel, hereby declare that the work on which this thesis is based is my original work (except where acknowledgements indicate otherwise) and that neither the whole work nor any part of it has been, is being, or is to be submitted for another degree in this or any other university. I authorise the University to reproduce for the purpose of research either the whole or any portion of the contents in any manner whatsoever. Mark A. Gabriel, 18 August 2016 ii © Mark A. Gabriel –– Ph.D. Research –– University of Cape Town Reforming hudud ordinances to reconcile Islamic criminal law with international human rights law ABSTRACT International human rights laws are grossly violated by the hudud ordinances, with their extremely cruel punishments, including stoning for adultery, beheading for apostasy, and amputation for theft. Pakistan, Sudan, Brunei Darussalam and Saudi Arabia, for example, follow the doctrines of the four main Sunni schools of jurisprudence and enforce hudud ordinances, thereby violating some of the core international human rights law instruments to which they are State Parties. Orthodox Muslims generally defend the hudud ordinances, claiming that they are divine and immutable. This study refutes the aforementioned claim and demonstrates that it is legitimate and possible to reform hudud punishments to reconcile them with international human rights law. The thesis differentiates between Shariah and Islamic law. It argues that Shariah refers to the divine rulings recorded in the Qur'an and correct Sunnah, while Islamic law is not fully divine, for it includes also such prescriptions that have been developed by the human effort of Islamic jurists. The thesis demonstrates that reformation is an Islamic concept that requires that Muslims read the teachings of the Qur'an and the Sunnah in the context of their own time and environment. It is postulated, therefore, that the rulings of Islamic law need to be examined in the light of the Qur'an, the correct Sunnah and the Islamic core values promoted in them. These include several internationally protected human rights, such as the right to life, equality, and freedom of religion. The thesis points out that the main purpose of Shariah is to serve the benefit of the people and to protect them from harm. To this end, Shariah has provided the Islamic principles of reality and necessity. These require that the reality of life and the needs of the people be considered at all times. If necessary for the sake of the people, the principles allow for exceptions to be made to even definite provisions. It, further, demonstrates how these principles can be applied to reform the hudud ordinances to reconcile them with international human rights law. Mark A. Gabriel, 18 August 2016 iii © Mark A. Gabriel –– Ph.D. Research –– University of Cape Town Table of Contents DECLARATION ............................................................................................................ II ABSTRACT III DEDICATION ........................................................................................................... VIII ACKNOWLEDGEMENTS .......................................................................................... IX CHAPTER 1 – INTRODUCTION ................................................................................. 1 I Background of the research ....................................................................................... 1 II Research question and description of the problem .................................................... 6 III Limitation of the research .......................................................................................... 7 IV Main argument ........................................................................................................... 8 V Significance and contribution of the study .............................................................. 10 VI Methodology ............................................................................................................ 11 VII Sources ..................................................................................................................... 12 VIII Structure of the thesis .............................................................................................. 15 CHAPTER 2 – ISLAMIC CRIMINAL LAW .............................................................. 19 I Introduction .............................................................................................................. 19 II Shariah versus Islamic law ...................................................................................... 20 (a) Sunni primary sources of Shariah .................................................................... 21 (b) Secondary and subsidiary sources of Shariah .................................................. 25 III Islamic jurisprudence (fiqh) ..................................................................................... 28 (a) The historical development of Islamic jurisprudence (fiqh) ............................. 29 (b) The four main Sunni schools of Islamic jurisprudence .................................... 31 (c) The current debate over Islamic jurisprudence ................................................. 34 IV Islamic law ............................................................................................................... 37 (a) Islamic criminal law ......................................................................................... 38 (b) Hudud ordinances ............................................................................................. 40 V Conclusion ............................................................................................................... 51 CHAPTER 3 THE CONFLICT BETWEEN THE ISLAMIC WORLD AND INTERNATIONAL HUMAN RIGHTS .............................................. 53 I Introduction .............................................................................................................. 53 II The conflict between the Islamic world and international human rights ................. 55 (a) Islamic reservations against international human rights laws .......................... 55 iv © Mark A. Gabriel –– Ph.D. Research –– University of Cape Town i. The view of human rights as a western invention ................................................ 56 ii. The historical development of international human rights law ............................ 58 iii. The Islamic world’s attitude towards international human rights laws ............... 61 iv. The debated universality of human rights ............................................................ 64 v. The protection of religion as a limit to individuals’ human rights ....................... 66 (b) The conflict of hudud ordinances with international human rights laws.......... 68 i. Cruel, inhuman and degrading punishment ......................................................... 68 ii. Discrimination — a violation of the principle of equality ................................... 69 iii. Violation of freedom of thought, conscience and religion ................................... 70 iv. Death penalty ....................................................................................................... 70 v. Procedural abuses ................................................................................................. 71 vi. Conflicts of the individual hudud crimes with international human rights laws . 72 (c) The influence of Islamic jurisprudence on the conflict of hudud ordinances with human rights ............................................................................................. 73 i. Apostasy (al-riddah) ............................................................................................ 74 ii. Adultery and fornication (zina) ............................................................................ 76 iii. Drinking (shurb al-khamr) ................................................................................... 79 iv. Theft (sariqa) ....................................................................................................... 80 v. Fighting against Allah and His Messenger (haraba) ........................................... 81 (d) The different Muslim positions towards hudud ordinances and human rights . 84 i. The orthodox Muslim view — defending hudud ordinances and rejecting reforms 84 ii. Secular Muslim view — calling for the separation of religion and state ............. 85 iii. The moderate Muslim position — striving to build bridges ................................ 86 III Conclusion ..............................................................................................................
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