Oke, this time the content is a bit different regarding to this happening issues..
I found this really interesting to read… You may want to know..
Being a Malaysian Chinese and a student of the British-influenced common law, I’m not the most qualified person to write on hudud. However, I hope some of my concerns here regarding hudud resonates with Muslims and Malaysians alike.
Hudud, in the broad sense, is a radically different system of law that emphasises retribution and deterrence. There is nothing objectively wrong about that, as different societies possess different standards for fairness and morality. But the devil, as they say, is often in the details.
1) Only male adult Muslims can be witnesses
Section 41 of Kelantan’s Syariah Criminal Code (II) Enactment 1993 only permits direct evidence from just adult male Muslims. This requirement for witnesses is limited to the extreme and bears problematic consequences.
How would you feel if a Muslim mother cannot testify her witnessing the brutal murder of her son – to let her story be told, to gain justice for her loved one – merely because she was born a woman?
Doesn’t it smack of discrimination that although you play, study and work together with Muslims all your life, but you are deemed unworthy of giving a testimony in support of a fellow Malaysian victim, just because you pray to Buddha or Jesus Christ?
2) There must be two or more witnesses for every hudud offence
Section 40(1) of the Enactment states that for the all the offences listed out in the Code, except for adultery and sodomy, the number of witnesses shall not be less than two. Not only do you need two witnesses, but they must be male Muslims.
Given that only 60% of the Malaysian populace is Muslim, isn’t it very likely that there will be numerous cases where the witnesses will only be non-Muslims? Doesn’t this also invite criminals to commit crimes in majority non-Muslim neighbourhoods, for the simple fact that it is unlikely to find two Malay Muslim men to testify against them?
3) Exclusion of circumstantial evidence
Worse, section 46(1) states that circumstantial evidence will not be accepted in hudud offences, except for zina (adultery) and syurb (intoxication), leaving only oral evidence admissible.
Circumstancial evidence relies on an inference to connect it to a conclusion of fact, as opposed to a direct evidence. For example, a witness seeing the accused stabbing the victim amounts to direct evidence. But when a witness says she saw the accused entering the victim’s house, when the victim’s blood is found on the accused’s clothing or when the murder weapon was found in the accused’s car – these amount to circumstantial evidence.
All these are vital evidence which help form the bigger picture of the events of the crime. With this thrown out of the window in hudud trials, how are the police and prosecution supposed to convict a criminal – especially when there are so many crimes that can be committed stealthly without any witnesses?
The saving grace for the high burden of proof in hudud is supposed to be the ta’zir offences. A Ta’zir offence arises when a person’s offence cannot be proven in hudud and qisas (an “eye for an eye” type of punishment for offences involving death or bodily injury). It is a lighter form of punishment and many scholars often cite this as a buffer to the high standards demanded by hudud.
However, section 39(2) states that all offences under this Enactment, whether hudud, qisas or ta’zir, shall be proved only by oral testimonies or by confession made by the accused. Section 40(1) states that the number of witnesses required to prove all offences under this Enactment, except zina, shall be at least two.
This means the standard of evidence is not relaxed under ta’zir – two male Muslim witnesses are still required and circumstantial evidence is still disallowed. When all circumstantial evidence points to the perpetrator, is it fair that he is not even punished the slightest when there are no witnesses to testify?
4) Monetary compensation in exchange for physical punishment
In hudud law, a wali (a relative of the victim who is entitled to remit the offence committed by the offender) may at any time before the execution of the punishment as qisas (an “eye for an eye” type of punishment for offences involving death or bodily injury), instead pardon the offender either with or without a diyat (monetary compensation).
The problem here is that a wali is not defined. The traditional definition would be a male guardian or custodian of a woman. Does the male relative or the wife of the victim gain priority in the claim for diyat? Furthermore, won’t the rich be in a better position to utilise this monetary compensation to escape the worst of qisas punishment such as death, while the poor will almost always have no option?
5) Unfair burden of proof to women in zina
Section 46(2) states that pregnancy or delivery of a baby by an unmarried woman shall constitute evidence to find her guilty of zina. The burden of proof is unfairly pushed to the woman now and the onus is on her now to prove the contrary. As pointed out by Sisters in Islam, this assumption of zina is unfair to women who might have been pregnant because of rape.
There are so many cases in Pakistan where the female victim, instead of gaining justice, unjustly becomes the perpetrator of zina. Will Malaysia be any better?
6) Unclear methods of punishment
While the punishment itself is described in detail, the bill does not describe how and where amputations, stoning, rejam and crucifixion will be carried out. Will it be done in the open where children can witness the wails of pain and spills of blood? Given the Malaysian Medical Association’s objection to hudud amputation, is it ethical for doctors to do so?
I understand that there are acts of the Prophet that indicate his benovelent mercy or his willingness to convict a person for lesser evidence – contrary to some provisions in the Enactment. As to how this Enacment measures up to theological accuracy, I cannot comment.
But this is the law as it stands. We should scrutinise every literal word to prevent the potential for any abuse. Giving the state the benefit of the doubt that it will carry out the law “justly” is never enough, as Malaysia has proven thus far.
Religious authorities have a tendency to be vindictive and unreasonable, as seen in Jawi’s relentless persecution of Borders book manager Nik Raina that has been labelled by the courts as unlawful and in bad faith.
It is often the standard tagline for Isma, Datuk Seri Ismail Sabri Yaakob and certain PAS leaders that some Malaysians should not interfere because “hudud does not apply to non-Muslims”. I beg to differ. Of course it does.
How can a non-Muslim family gain closure if the Muslim perpetrator is acquitted because the evidentiary requirement is so stringent? Why can’t non-Muslims who witness a crime in broad daylight be given a chance to contribute to the security of society, especially when the alternative is letting the perpetrator go scot-free? Why can’t I, as a Malaysian, voice out on what I believe is an unfair standard of justice for my fellow Muslim Malaysians?
But above all, what is most regrettable is the tone and approach of the leaders involved in the hudud issue. Instead of explaining the beautiful jurisprudential value of hudud – which I have been fortunate to have found after study – and how it can better protect society, we see the Kelantan menteri besar waxing lyrical with guilt-tripping undertones that this is God’s unquestionable law and conveniently labelling critics as “tak beriman”.
Instead of explaining how hudud benefits all race and religions, they adopt isolationist stances and say non-Muslims have no right to interfere with Islam.
Dear sirs, with all due respect, it is not God and Islam that I do not trust.
It is, and always have been, you – the fallible human beings that always pretend to know it all. – March 18, 2015.
* Lim Wei Jiet reads The Malaysian Insider.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.
– See more at: http://www.themalaysianinsider.com/sideviews/article/a-non-muslim-law-students-perspective-on-hudud-in-malaysia-lim-wei-jiet#sthash.8X5QEtuZ.HEhjHJK6.dpuf