Beyond the severity of hudud punishments — Dr Shahrul Mizan Ismail

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Source: NST Online

BY DR SHAHRUL MIZAN ISMAIL

THE polemic in relation to the implementation of hudud and how it clashes with several aspects of human rights is not a new quandary. In fact, it very much goes back to the bigger debate between Islam and international human rights law, and the ever irresolvable dilemma of drawing an effective reconciliation between the theocentric essentials of Islamic law and the demands of international human rights law.

This problem is further exacerbated in the case of hudud punishments, since syariah is so explicitly clear as to its crimes and punishments, lessening any manoeuvring space between the two.

But arguing merely on this basis, focusing only on the severity of hudud punishments and how barbaric they are as a justification for them to be denunciated altogether is, in itself, counterproductive. The act of lashing 100 times or stoning till death a human being will, of course, be inconsistent with modern penological principles and contemporary norms of international human rights law.

Nevertheless, demanding Muslims categorically forsake them on these grounds is ineffective since it insensitively neglects a number of decisive realities of Islam and Muslims in general. To pragmatically resolve the issue, one must go back to listening, constructively comparing, and sincerely appreciating the vast divergences between Islamic law and human rights law.

The incontrovertible reality is that both are actually, fundamentally grounded on two totally different frameworks. While God is the central focus of everything in Islam, international human rights law relies entirely on human beings as the fountain of all rights. This is derived from the anthropocentric concept of human rights, where man is regarded as the starting point of all thinking and action.

“Rights” under international human rights law, are claimed to be neither granted by the state nor God, and they are not the result of one’s actions. To be entitled to human rights, one does not have to do anything other than be born a human being.

Islamic law, on the contrary, is based on the concept of “theocentricism” i.e. “God-consciousness”. This concept denotes the belief that all matters pertaining to human beings are NOT independent of God. In fact, both are inseparable and the latter is the ultimate barometer of the former. While human rights law celebrates the sanctity of “human beings”, syariah sprung from the understanding that it is God who has vested human beings with all their rights and prerogatives. While human rights law emerged from history and human actions, Islamic law derives its foundation from the Quran, and instils the belief that Allah (God) is the granter of all rights. In Islam, human nature is not the generator of human rights, but merely a channel through which all the rights and obligations that God has bestowed upon mankind are transported and it is by virtue of this divine investment that every individual obtains their rights. Hence, the idea of natural or innate rights independent of God has no meaning within the context of Islam as all values come from Allah.

While the basis for rendering a right in human rights law is to acknowledge the freedom, liberty and privacy of another individual, the duty to respect human rights under Islamic law arises both from obligation to respect human dignity as well as fulfilling religious responsibility. In fact, it is also believed that by performing religious commitments to God in a vertical relationship, the horizontal commitment to another human being is reinforced.

Human rights law emphasises the notion of individualism, the philosophy which views the individual as autonomous and possesses rights above and prior the society. Its main function is to ensure the freedom of an individual. No entity, such as the state or society, could intervene with an individual’s freedom to decide freely his own moral standard. Human rights law, therefore, protects the autonomy of an individual because he is an end in himself and kind of absolute.

Most non-Western traditions, on the contrary, place more emphasis on obligations, and the individual is conceived as an integral part of the greater whole of a “group”, within which one’s role and status are defined. Upholding a similar notion of “rights”, Islam also emphasises that what really matters is duty rather than rights. And whenever rights do exist, they are usually consequences of one’s status or actions, not one’s nature. Contrary to human rights law, syariah promotes a moralist regime, whereby liberty is not independent of religious morality and consciousness. An individual in Islam is not an end to himself. In Islam, no man is perfect and human knowledge is limited, and only God, being the Creator of human intelligence, knows what man knows not, including what’s best, even for man, himself. In Islam, the doctrine of rights is closely related to the concept of maslahah, meaning welfare, benefit and interest, which include the welfare and benefit of even the individual himself. In Islam, “a right is not an end in itself but merely a means to an end”. As correctly observed by renowned human rights scholar Baderin Mashood, “the ultimate objective of rights (in Islam) does not end with the individual per se”. The end is the wellbeing of the individual, which is believed to bring about the wellbeing of society.

For example, some restrictions are considered necessary to preserve the overall liberty and freedom of an individual. To illustrate, the prohibition of consuming liquor by Islam has always been viewed as a form of interference with an individual’s freedom and privacy. Nevertheless, the purpose of the prohibition is to actually secure the individual’s freedom to act and think independently, which would be clearly frustrated due to the intoxicating effects of alcohol. Therefore, by prohibiting liquor, Islam actually aims to preserve the overall freedom and liberty of the individual. Astonishingly, certain Western writers have proposed a similar argument. Thomas Green, for example, defined true freedom and possessing liberty as the state of being free from even personal desires or cravings that cannot be controlled.

Hence, the “individual” in Islam is not vested with the same “near-to-absolute” degree of liberty as endowed by international human rights law. And since Islam propagates a moralist regime, the state is imposed with the obligation to maintain Islamic moral standards by “commanding virtues and prohibiting vices”. In other words, the Islamic state is entrusted with a higher degree of responsibility to maintain moral standards in comparison with the limited “authority” to regulate an individual’s rights in human rights law.

The unalterable reality remains that, despite the severity and harshness of hudud punishments, a great number of Muslims will never completely cease from trying to implement them. Any prejudicial attempt to stop the implementation of hudud could easily be translated as insensitive interference with the teachings of Islam, which would instantaneously reinforce the feeling of fidelity to religious norms.

Religion has a strong influence on human belief systems and behaviour. This is especially true with Islam, being a religion that governs almost every aspect of life of its followers. While it is true that the behaviour of believers is not always motivated by total fidelity to their faith, religious considerations have always been perceived too important for human rights scholars and advocates to simply dismiss as irrelevant, insignificant, or problematic. Hence, any approach of handling this issue must be done delicately with care and with utmost sincerity in trying to understand the aforesaid differences between the two without any contemptuous attempt to downplay either one of them. We have to go back to listening… with utmost sincerity.

The writer, Dr Shahrul Mizan Ismail is an associate professor in the Faculty of Law, Universiti Kebangsaan Malaysia