Much has been debated about the amendments to the Shariah Courts (Criminal Jurisdiction) Act 1965. A massive demonstration in support of the bill was held last Saturday and tensions are running high.
PAS has insisted that the main aim of the proposed amendment is not to introduce hudud but to strengthen the shariah laws and shariah courts.
But if that is true, then PAS for sure must have identified the weaknesses. To the general observer, the weaknesses are apparent and appalling.
Just look at the number of cases of women abandoned by their husbands and children denied their maintenance. Or the prolonged cases of fasakh (annulment of marriage). These cases sometimes take years to resolve, if they are ever settled. Most of the time, it is due to the failure of the men to show up in court. And most of the time this is deliberate; they want to “teach a lesson” to the women.
This is a clear manifestation of injustice. It is injustice committed in the shariah courts and in the name of Islam, with no foreseeable remedy. If indeed one really wants to strengthen the shariah system, wouldn’t it be more meaningful to strengthen the Islamic Family Law? This is a law that falls under the ambit of the shariah courts. When one has failed to strengthen this aspect of the law, it looks rather foolish and irresponsible to focus on criminal matters to increase the severity of punishments.
Why this preoccupation with severe punishments? Even if one argued that the amended version proposed in November 2016 is deemed constitutional since it did not have the same over-arching principle that intrudes into the Federal Constitution as in the May 2016 amendment, why the need for harsh punishments? Will they really “strengthen” the shariah law and shariah courts when we know for sure that the glaring weaknesses are not being tackled?
Wouldn’t the religion of Islam look more just when the so-called guardians of the faith fight for the rights of the abandoned wives and neglected children? And does the imposition of such harsh laws make us more Islamic in the eyes of God? We have to ask ourselves, were we not imbued with the notion that the most noble thing to be done is to dispense justice?
In this regard, a renowned student of Ibn Taimiyyah, Ibn al-Qayyim al-Jawziyyah, in his book I’lam al-Muwaqi’in, said: “The foundation of shariah is wisdom and the safeguarding of people’s interest in this world and in the next. In its entirety, it is justice, mercy, and wisdom.”
Every rule which turns justice into tyranny, mercy into cruelty, good into evil, and wisdom into triviality, does not belong to the shariah, even though it might have been introduced therein by implication.
“The shariah is God’s justice and mercy. Life, nutrition, medicine, recuperation and virtue are made possible by it. Every good that exists is derived from it, and every deficiency is the result of its loss and dissipation. For the shariah, which God entrusted to His Prophet to transmit, is the pillar of the world and the key to success and happiness in this world and the next.”
It becomes obvious then that the ultimate aim of shariah, like the aim and purpose of any law in the world, is to establish justice and to preserve and promote human welfare. And since the shariah did not come to us in a codified form, it requires our human agency to approximate God’s justice. And as humans, we might err. But to err in approximating God’s justice is better than to enforce something because it is believed to be the will of God.
We should not gravitate into becoming a Taliban state by imposing harsh shariah criminal laws when we have failed to solve mundane issues such as divorce and alimony in our shariah courts, or more pressing issues like economic equality and good governance.
When some people are still living in makeshift tents after the floods of two years ago, when clean and colourless water is still a main problem even after twenty years under our rule, and when many of our youths are still unemployed with a high rate of intravenous drug users among them, to prioritise pushing for harsher penalties for personal offences only proves that we have failed to understand Fiqh Awlawiyyat, or the jurisprudence of priorities, in decision-making.
Does lashing someone a hundred times for fornication make us the warriors of Islam or defenders of the laws of God?
The Prophet himself was very reluctant to impose a hadd punishment to an adulterer who made a confession. When Ma’iz al-Aslami confessed his act of adultery to the Prophet, the Prophet refused to engage him in conversation and turned his face away.
While we acknowledge there are variations in the report, what transpired was that the Prophet finally asked, after avoiding Ma’iz the fourth time, whether Ma’iz was sane. Then he asked whether Ma’iz really knew what fornication meant or “you only kissed her or, or winked at her, or checked her out?” Lastly, the Prophet asked Ma’iz or his people if he had ever been married.
These three elements plus the Prophet’s act of turning his face away from Ma’iz can only be interpreted as an extreme reluctance to apply the hadd punishment. The Prophet’s intention was clearly to allow Ma’iz to rethink and to be left alone so that he could repent.
Now compare this noble attitude of the Prophet to that of the Talibans in PAS today. Mercy and compassion are alien to them, although mercy is traditionally considered to be the all-pervasive objective of the shariah.
Looking at the political situation in this country and the timing for such a divisive issue to take place, leads us to one main conclusion – that the main beneficiary from this commotion is none other than the ruling government.