THE current conversation about PAS’s plans for an Islamic state and the ipso facto imposition of syariah is incomplete. With everyone latching onto hudud as the locus for debate, it would seem the larger picture has been obscured somewhat.
This inquiry into the implications of syariah will begin with an examination of a couple of aspects of Islamic criminal law which have been overlooked, namely qisas and diyya.
Quran (© el7bara/ flickr)
Qisas literally means “retribution” and is described in Surah Al-Baqara, 178 of the Quran: “[T]he law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman.” (translation by Yusuf Ali). While it is true our civil laws currently provide for similar action whenever it condemns convicted murderers to the gallows (whatever our views are on capital punishment), qisas also extends to lesser crimes.
This eye-for-an-eye precept was demonstrated most literally in Iran in 2008 when Ameneh Bahrami, who had been blinded with acid by a spurned suitor, was given permission by the syariah court to pour acid into the eyes of her attacker. Her own description of how the punishment would be administered? “He will lie in front of me drugged. I will feel my way to his eyes and then drop 20 drops of acid in each eye … He made fun of me in front of the court. Now he is whimpering for mercy, asking me to leave him at least one eye. But it is too late for that.”
While qisas is by no means mandatory — the Quran recommends that wrongdoers be forgiven in the name of charity and be mulcted instead — its very presence opens the door to the enactment of cruel and unusual punishment in the name of justice.
Different payments
Should qisas not be pursued in cases involving loss of life, there is diyya, essentially blood money paid to the families of those killed intentionally or unintentionally as compensation for their loss. The Quran does not specify the amount and nature of this compensation and leaves many aspects of diyya to local customs and traditions.
This has invariably led to situations where payments differ between men and women and Muslims and non-Muslims. Payments for ahl al-kitab (People of the Book, referring to non-Muslims of the monotheistic Abrahamic faiths) and followers of other religions would also be different.
(© Lainie Yeoh)
In Saudi Arabia, for example, compensation for a Muslim man is greater than that for a Muslim woman, which is greater than that for a Christian woman, which in turn is more than that for a Hindu man. Conversely, in Yemen, the compensation for a Jew is greater than that for a Muslim, on account of the former’s status as a protected member of the tribe. In Iran, compensation is not necessary for victims whose blood is considered mobah, or able to be spilled with impunity, such as members of the Baha’i community.
Can there be equal treatment?
Even if we were to accept uncontested the notion of the quantifiability of human life in cash terms, it is clear that there is a strong possibility for equality before the law to be compromised under such a system. The fact that we already bear witness to unaddressed inequalities in Malaysia, borne by adherence to some notion or other of ethno-religious supremacy, reflects badly on the prospect for equal treatment should qisas be implemented.
Above all, we must consider how guilt and innocence are determined in syariah law. The existing literature is not encouraging.
Human Rights Watch issued a report in 1999 detailing a case in Pakistan involving a man who murdered his wife’s lover upon finding them in a “compromising position”. In this instance, it was ruled that, as men were the “guardians of women” (according to Surah An-Nisa, 34), the jealous husband had merely been “protecting his property” when he killed the cuckolding man. It was accordingly adjudged a case of self-defense and no punishment, not even diyya, was levied upon the husband, who was declared innocent. The deceased victim, on the other hand, was deemed guilty by virtue of his complicity in adultery.
That the system of beliefs these moral justifications are based on is not one all Malaysians subscribe to merely compounds the problem. Apologists will, at this point, trot out the well-worn argument that syariah laws only apply to Muslims and not to non-Muslims, and therefore its wholesale implementation should not be of concern to non-Muslims.
That line of reasoning is a poor one. More than one-third of Malaysians are non-Muslims who live cheek by jowl with their Muslim countrymen and women, and sooner or later a non-Muslim will perpetrate a crime against a Muslim or vice-versa.
When this comes to pass, one of two things will happen, both of which are contrary to the purportedly exclusive nature of syariah. Either non-Muslims will be treated differently, in which case we go back to the problem of legal parity, or they will be treated identically, which would necessarily require the imposition of Islamic law on non-Muslims. There is no such thing as compartmentalised law in a multi-cultural society, regardless of what PAS would have us believe.
Hudud is thus only a small symptom of a much larger predicament. What is truly at stake here are the very notions of universal equality and justice. One hopes the majority holds these things dear. 
Yow Hong Chieh holds a BA and and would like to see the gates of itjihad reopened.
Karcy says
Excellent write-up. Thank you.