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Understanding hudud
In an Islamic state, there is no such thing as
separation between Church and State.
Islamic law Syariah includes marriages,
contracts, inheritance, administration etc. and
includes criminal sanctions.
Hudud is one part of Islamic criminal law
framework.
Generally 3 types of crimes and punishments:
Hudud (crimes where punishment is fixed)
Tazir (crimes where punishment is discreationary)
Qisas (crimes where punishment is retaliatory (aka eye for
an eye) and diyya (or diyat) (instead of retaliatory,
compensation may be paid)
Syahredzan Johan | Partner, RamRais & Partners
Understanding hudud
Hudud are the most serious of crimes because they are
crimes against God or against limits ordained by God.
Responsibility is on the State to punish these crimes.
Punishments are fixed, cannot be reduced if found
guilty.
Types of offences:
Theft
Highway robbery
Drinking alcohol
Zina illegal sexual intercourse
Qazhaf false accusation of zina
Apostasy (*opinions divided)
Syahredzan Johan | Partner, RamRais & Partners
Understanding hudud
In an Islamic state hudud is for all.
all Not just
Muslims (except for drinking alcohol and apostasy).
The burden of proof is very high. Not just beyond
reasonable doubt but beyond any doubt at all.
If there is any doubt, qadhi (judge) must not punish
for hudud principle of syubhah.
In such circumstances, commute down to tazir
where punishment is discretionary.
Principle of repentance taubat. Do not punish if
offender has repented.
List II:
States have jurisdiction to make laws for the creation
and punishment of offences by persons professing the
religion of Islam against precepts of that religion, except in
regard to matters included in the Federal List
constitutional
amendments that disturb the basic structure of the
Constitution is unconstitutional.
Amending the Constitution to make Malaysia an
Islamic state and amending the Constitution to take
away safeguards in Articles 7 and 8 would disturb
basic structure of the Constitution, thus would be
unconstitutional.
Syahredzan Johan | Partner, RamRais & Partners
Thank you
Syahredzan Johan | Partner, RamRais & Partners