Malaysia: Battle for the hearts and minds…over women’s bodies?
Source:
Malaysiakini Malaysian newspaper, Malaysiakini, reported that the next general election is a battle for the hearts and minds of Muslims.
One of the main items on this agenda is over hudud law.
Originally published on 23 October 2003
Malaysiakini reported that the next general election is a battle for the hearts and minds of Muslims. One of the main items on this agenda is over hudud law.
By the emails I have received, the Nigerian case of Amina Lawal has generated some interest in Malaysia as well. One of my earliest involvement with Islamic law in the 90s has been with campaigns at the regional level around hudud law and its impact on women. I sincerely hope that the battle of the hearts and minds of Muslims would not have to be fought over women’s bodies (and death). I think this is also the concern of the emails from Malaysia.
Country practice does show that invariably, the first victims of hudud would be women accused of zina (illicit sexual intercourse). This was the case in Pakistan under its Hudood Ordinances, as in Nigeria under its state hudud laws.
Nigeria has two cases tried in the Sharia Court. The first was the case of Safiya Hussaini Tungar Tudu. Safiya, 35 was acquitted on appeal in the state of Sokoto. The second involves a 31-year-old mother of four Amina Lawal Kurami.
Both Safiya and Amina came from impoverished families. Both married very young at 12 and 14 respectively and both were abandoned by their husbands and left to care for children without any financial support. The women accused of zina under the Pakistan Hudood Ordinances share similar backgrounds. These are well documented by human rights groups in the respective countries.
Amina Lawal was charged and convicted of zina in the lower sharia court in the state of Katsina, Nigeria in March 2002. She appealed her conviction and sentence of death by stoning (rajm) to the upper sharia court. That court affirmed the conviction and sentence in August 2002. She then appealed to the sharia court of appeal which acquitted her on Sept 25, 2003 in majority of four-to -one judgment.
The sentence to death by stoning, for illicit sex by a married person (adultery) is prescribed in the Sharia Penal Code of the Katsina state.
Victory for Sharia
The governor of Lagos, Nigeria made a statement to an online local press that would probably be well received as well here in Malaysia by those in support of the enforcement of hudud.
He said that the acquittal marks, "a victory for the sharia legal system" and that "the sharia is a well-developed legal system that places emphasis on objectivity, respect for evidence, serious regard for the truth and a holistic perspective that combines morality and legality".
A colleague at Emory Law School’s Islam and Human Rights project, Dr Ali Ahmad of the University of Bayero Law School in Kano, Nigeria offers a different perspective of the acquittal.
"The first acquittal of an adultery charge was that of Safiya, and anyone who thought Amina would really be stoned to death in Nigeria was mistaken. But far more mistaken is anyone who believes the lady’s acquittal was only due to Sharia’s internal mechanism as implemented in Katsina.
"Nothing can be farther from the truth. In my view, Safiya’s earlier acquittal was due largely to international public opinion. Amina’s trial attracted even more intense international opinion and the outcome was equally predictable. And one can fairly predict similar adultery cases that will be filed. The Nigerian public can now appreciate what circus those in authority have turned Sharia to be." (amanaonline.com)
To several commentators who are sympathetic to the desire of a section of Muslims in Nigeria to the application of hudud law as part of the Islamic law in certain states in Nigeria, the trial of Amina Lawal leaves a lot to be desired.
Technical Grounds
Amina was acquitted on "technical grounds".
The lower sharia court took her pregnancy as proof of zina. This is not part of the Sharia Penal Code in the state. There is also a variant opinion in general sharia of legal opinions in some schools which allowed a period of gestation up to five years. This legal opinion was raised by Amina’s counsel on appeal which the court accepted.
Amina was unmarried when she was found to be pregnant, two years after her divorce. There is no dispute to these facts.
She was arrested and charged based on the information received from the police. The majority opinion in the Sharia Appeal Court ruled that a proper case of zina can only be brought to court on the basis of four eyewitnesses and not on the basis of information received by police or anybody.
That person who offered information without proof may well be subject to the mandatory one hundred lashes for false accusation of unchastity, a hudud offence.
Proof of zina, according to the majority Sharia Court of Appeal opinion is not proved by pregnancy, but by four eyewitnesses as prescribed in the Qur'an. Pregnancy of unmarried women as proof of zina is a legal opinion developed by the Sunni-Maliki school of thought. According to the court, the arraignment alone was incurably defective.
Further, the lower Sharia court was not properly constituted as required under the state law when it tried the case. A properly constituted court is presided by a single judge with two court members under the law. This is not "Islamic" law but is civil inspired legislation as procedural law.
Single Confession
In general sharia, any confession to the commission of a hudud offence can be retracted at any time before the execution of a judgement. There was evidence that Amina had retracted her confession and the appeal judges found it was wrong of the upper Sharia court to refuse her retraction.
The court also ruled that no one can be convicted of zina based on a single confession. The court made this ruling based on the case of Ma’iz during the time of the Prophet. The Prophet had refused to accept the confession on the three occasions Ma’iz made them. The Prophet had also inquired on Ma’iz’s mental status before his confession was accepted.
This seems to suggest that the court would accept confession as proof of zina if it is made three times in three separate occasions and of a person who is able to understand the nature of the charge and the confession thereof. Counsel in the lower court had argued that Amina did not know that she was confessing to zina which carried the sentence of death by stoning.
There is one interesting point in the raging debate among academia, human rights defenders, women’s groups, ulama (Muslim scholars) and policy makers in Nigeria in the aftermath of the Safiya and Amina cases. This relate to the diversity of legal opinions or fiqh developed even within the traditional exegesis and juristic interpretations on every conceivable point on definitions of each hudud offence and the nature of proof. This is evidenced in the Amina Lawal case as well.
The diversity of legal opinions of sects, schools and new exegesis (like hermeneutics) would make the sharia criminal (hudud) process a nightmare. Lawyers and human rights defenders will no doubt seek ways to impugn any decision which is considered not just.
Diversity
The fact of such diversity, may reflect a ‘victory for the sharia legal system’. It may also reflect the difficulty of actually enforcing a legal system which rests on diversity of opinions and on top of that inflict great psychological harm and shame on victims-accused who may survive the ordeal after a length of court trials and tribulations.
The drafters of both the Kelantan and Terengganu hudud laws cannot claim that the electoral system has allowed them the prerogative to determine which particular opinion must be passed as positive law in these two states.
The development of fiqh is a process of debate, challenge and consensus during the time when fiqh was argued to have crystallised for the ummah. The current political process through elections and passage of hudud (through selecting particular views by drafters) through the state legislature is arguably a different process facilitated by the creature of the nation state. This applies to both "PAS state laws" and "BN state laws" on Islamic criminal law.
Furthermore, by making claims of respect for democracy, constitutionalism and human rights, both PAS and Umno must be held ransom to these principles which allow challenge when injustice is alleged. The challenge is both political and legal.
It stands to reason and logical argument that every positive law on hudud and ta’azir definitions and proof should be opened to challenge as the diversity of available opinions and new interpretations allow.
Criminal Law - A state matter
Nigeria is a federation of 36 states. Nineteen of the 36 states have a majority Muslim population. Sixteen of these Muslim majority states have passed the sharia criminal law of hudud.
Criminal law in Nigeria comprises of civil criminal law and sharia crminal law including hudud. Criminal law in Nigeria is not a federal matter like that in Malaysia. In Nigeria, the state legislature is the sole lawmaking body which has the power to pass criminal law. Parliament (federal legislature) has no power over criminal law.
This has enabled 16 states in Nigeria to pass hudud laws under the 1999 Constitution. (http://www.nigeria-law.org)
The Federal Constitution of Malaysia gives the primary lawmaking power on criminal law to the federal legislature or Parliament. The state legislature under the Federal Constitution has a restricted or residual power over criminal matters. Like the Federal Constitution, the Nigerian Constitution espouses its written constitution as the supreme law of the land.
In Nigeria the state courts are of two types, the civil and the sharia courts and both courts are under one system or hierarchy of courts. Thus the highest court in the land, the Supreme Court of Nigeria hears appeals from the Court of Appeal. The Court of Appeal in turn may hear any civil case on appeal from the Sharia Appeal Court. The Sharia Appeal Court appears to be the court of last resort for sharia criminal matters.
Comparing the Nigerian Constitution with that of the Federal Constitution of Malaysia, it would appear that the Federal Constitution is more specific in allowing a fundamental liberty challenge to a state law. The chapter on fundamental liberties is contained in Part II of the Federal Constitution.
The other challenge, which I believe has been initiated by lawyer, Zaid Ibrahim in relation to the Kelantan hudud law, relates inter alia, to the competency of the Kelantan state legislature to pass that law.
I would surmise as a lawyer that if there are contesting legal opinions on a particular principle in Islamic law pertaining to hudud and the presiding court does not favour one over the other, the aggrieved party may explore the extra possibility of taking a case to the civil court on constitutional grounds.
Salbiah Ahmad
Visiting scholar
Islam and Human Rights project
Law and Religion programme
University of Emory Law School
Atlanta, Georgia, USA
The writer is currently a visiting scholar to the Islam and Human Rights project of the University of Emory Law School in Atlanta, Georgia, USA.
Acknowledgement is made to BAOBAB for Women's Human Rights, a women’s group in Nigeria for the English summary of court proceedings in the case of Amina Lawal Kurami vs The State of Nigeria. The judgment of the Sharia Court of Appeal has not been officially released.
Malaysiakini reported that the next general election is a battle for the hearts and minds of Muslims. One of the main items on this agenda is over hudud law.
By the emails I have received, the Nigerian case of Amina Lawal has generated some interest in Malaysia as well. One of my earliest involvement with Islamic law in the 90s has been with campaigns at the regional level around hudud law and its impact on women. I sincerely hope that the battle of the hearts and minds of Muslims would not have to be fought over women’s bodies (and death). I think this is also the concern of the emails from Malaysia.
Country practice does show that invariably, the first victims of hudud would be women accused of zina (illicit sexual intercourse). This was the case in Pakistan under its Hudood Ordinances, as in Nigeria under its state hudud laws.
Nigeria has two cases tried in the Sharia Court. The first was the case of Safiya Hussaini Tungar Tudu. Safiya, 35 was acquitted on appeal in the state of Sokoto. The second involves a 31-year-old mother of four Amina Lawal Kurami.
Both Safiya and Amina came from impoverished families. Both married very young at 12 and 14 respectively and both were abandoned by their husbands and left to care for children without any financial support. The women accused of zina under the Pakistan Hudood Ordinances share similar backgrounds. These are well documented by human rights groups in the respective countries.
Amina Lawal was charged and convicted of zina in the lower sharia court in the state of Katsina, Nigeria in March 2002. She appealed her conviction and sentence of death by stoning (rajm) to the upper sharia court. That court affirmed the conviction and sentence in August 2002. She then appealed to the sharia court of appeal which acquitted her on Sept 25, 2003 in majority of four-to -one judgment.
The sentence to death by stoning, for illicit sex by a married person (adultery) is prescribed in the Sharia Penal Code of the Katsina state.
Victory for Sharia
The governor of Lagos, Nigeria made a statement to an online local press that would probably be well received as well here in Malaysia by those in support of the enforcement of hudud.
He said that the acquittal marks, "a victory for the sharia legal system" and that "the sharia is a well-developed legal system that places emphasis on objectivity, respect for evidence, serious regard for the truth and a holistic perspective that combines morality and legality".
A colleague at Emory Law School’s Islam and Human Rights project, Dr Ali Ahmad of the University of Bayero Law School in Kano, Nigeria offers a different perspective of the acquittal.
"The first acquittal of an adultery charge was that of Safiya, and anyone who thought Amina would really be stoned to death in Nigeria was mistaken. But far more mistaken is anyone who believes the lady’s acquittal was only due to Sharia’s internal mechanism as implemented in Katsina.
"Nothing can be farther from the truth. In my view, Safiya’s earlier acquittal was due largely to international public opinion. Amina’s trial attracted even more intense international opinion and the outcome was equally predictable. And one can fairly predict similar adultery cases that will be filed. The Nigerian public can now appreciate what circus those in authority have turned Sharia to be." (amanaonline.com)
To several commentators who are sympathetic to the desire of a section of Muslims in Nigeria to the application of hudud law as part of the Islamic law in certain states in Nigeria, the trial of Amina Lawal leaves a lot to be desired.
Technical Grounds
Amina was acquitted on "technical grounds".
The lower sharia court took her pregnancy as proof of zina. This is not part of the Sharia Penal Code in the state. There is also a variant opinion in general sharia of legal opinions in some schools which allowed a period of gestation up to five years. This legal opinion was raised by Amina’s counsel on appeal which the court accepted.
Amina was unmarried when she was found to be pregnant, two years after her divorce. There is no dispute to these facts.
She was arrested and charged based on the information received from the police. The majority opinion in the Sharia Appeal Court ruled that a proper case of zina can only be brought to court on the basis of four eyewitnesses and not on the basis of information received by police or anybody.
That person who offered information without proof may well be subject to the mandatory one hundred lashes for false accusation of unchastity, a hudud offence.
Proof of zina, according to the majority Sharia Court of Appeal opinion is not proved by pregnancy, but by four eyewitnesses as prescribed in the Qur'an. Pregnancy of unmarried women as proof of zina is a legal opinion developed by the Sunni-Maliki school of thought. According to the court, the arraignment alone was incurably defective.
Further, the lower Sharia court was not properly constituted as required under the state law when it tried the case. A properly constituted court is presided by a single judge with two court members under the law. This is not "Islamic" law but is civil inspired legislation as procedural law.
Single Confession
In general sharia, any confession to the commission of a hudud offence can be retracted at any time before the execution of a judgement. There was evidence that Amina had retracted her confession and the appeal judges found it was wrong of the upper Sharia court to refuse her retraction.
The court also ruled that no one can be convicted of zina based on a single confession. The court made this ruling based on the case of Ma’iz during the time of the Prophet. The Prophet had refused to accept the confession on the three occasions Ma’iz made them. The Prophet had also inquired on Ma’iz’s mental status before his confession was accepted.
This seems to suggest that the court would accept confession as proof of zina if it is made three times in three separate occasions and of a person who is able to understand the nature of the charge and the confession thereof. Counsel in the lower court had argued that Amina did not know that she was confessing to zina which carried the sentence of death by stoning.
There is one interesting point in the raging debate among academia, human rights defenders, women’s groups, ulama (Muslim scholars) and policy makers in Nigeria in the aftermath of the Safiya and Amina cases. This relate to the diversity of legal opinions or fiqh developed even within the traditional exegesis and juristic interpretations on every conceivable point on definitions of each hudud offence and the nature of proof. This is evidenced in the Amina Lawal case as well.
The diversity of legal opinions of sects, schools and new exegesis (like hermeneutics) would make the sharia criminal (hudud) process a nightmare. Lawyers and human rights defenders will no doubt seek ways to impugn any decision which is considered not just.
Diversity
The fact of such diversity, may reflect a ‘victory for the sharia legal system’. It may also reflect the difficulty of actually enforcing a legal system which rests on diversity of opinions and on top of that inflict great psychological harm and shame on victims-accused who may survive the ordeal after a length of court trials and tribulations.
The drafters of both the Kelantan and Terengganu hudud laws cannot claim that the electoral system has allowed them the prerogative to determine which particular opinion must be passed as positive law in these two states.
The development of fiqh is a process of debate, challenge and consensus during the time when fiqh was argued to have crystallised for the ummah. The current political process through elections and passage of hudud (through selecting particular views by drafters) through the state legislature is arguably a different process facilitated by the creature of the nation state. This applies to both "PAS state laws" and "BN state laws" on Islamic criminal law.
Furthermore, by making claims of respect for democracy, constitutionalism and human rights, both PAS and Umno must be held ransom to these principles which allow challenge when injustice is alleged. The challenge is both political and legal.
It stands to reason and logical argument that every positive law on hudud and ta’azir definitions and proof should be opened to challenge as the diversity of available opinions and new interpretations allow.
Criminal Law - A state matter
Nigeria is a federation of 36 states. Nineteen of the 36 states have a majority Muslim population. Sixteen of these Muslim majority states have passed the sharia criminal law of hudud.
Criminal law in Nigeria comprises of civil criminal law and sharia crminal law including hudud. Criminal law in Nigeria is not a federal matter like that in Malaysia. In Nigeria, the state legislature is the sole lawmaking body which has the power to pass criminal law. Parliament (federal legislature) has no power over criminal law.
This has enabled 16 states in Nigeria to pass hudud laws under the 1999 Constitution. (http://www.nigeria-law.org)
The Federal Constitution of Malaysia gives the primary lawmaking power on criminal law to the federal legislature or Parliament. The state legislature under the Federal Constitution has a restricted or residual power over criminal matters. Like the Federal Constitution, the Nigerian Constitution espouses its written constitution as the supreme law of the land.
In Nigeria the state courts are of two types, the civil and the sharia courts and both courts are under one system or hierarchy of courts. Thus the highest court in the land, the Supreme Court of Nigeria hears appeals from the Court of Appeal. The Court of Appeal in turn may hear any civil case on appeal from the Sharia Appeal Court. The Sharia Appeal Court appears to be the court of last resort for sharia criminal matters.
Comparing the Nigerian Constitution with that of the Federal Constitution of Malaysia, it would appear that the Federal Constitution is more specific in allowing a fundamental liberty challenge to a state law. The chapter on fundamental liberties is contained in Part II of the Federal Constitution.
The other challenge, which I believe has been initiated by lawyer, Zaid Ibrahim in relation to the Kelantan hudud law, relates inter alia, to the competency of the Kelantan state legislature to pass that law.
I would surmise as a lawyer that if there are contesting legal opinions on a particular principle in Islamic law pertaining to hudud and the presiding court does not favour one over the other, the aggrieved party may explore the extra possibility of taking a case to the civil court on constitutional grounds.
Salbiah Ahmad
Visiting scholar
Islam and Human Rights project
Law and Religion programme
University of Emory Law School
Atlanta, Georgia, USA
The writer is currently a visiting scholar to the Islam and Human Rights project of the University of Emory Law School in Atlanta, Georgia, USA.
Acknowledgement is made to BAOBAB for Women's Human Rights, a women’s group in Nigeria for the English summary of court proceedings in the case of Amina Lawal Kurami vs The State of Nigeria. The judgment of the Sharia Court of Appeal has not been officially released.
