Challenges to the application of Ḥudud in Malaysia : an evaluative study /
The ḥuddd crimes and punishments in Islamic criminal law may be the most contentious aspects of Islamic law today. While many Muslim majority countries may want to implement the ḥudud, they are also modern constitutional nation states in a global environment dominated by the human rights movement. T...
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| Main Author: | |
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| Format: | Thesis |
| Language: | English |
| Published: |
Kuala Lumpur :
Kulliyyah of Islamic Revealed Knowledge and Human Sciences, International Islamic University Malaysia,
2018
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| Subjects: | |
| Online Access: | Click here to view 1st 24 pages of the thesis. Members can view fulltext at the specified PCs in the library. |
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| Summary: | The ḥuddd crimes and punishments in Islamic criminal law may be the most contentious aspects of Islamic law today. While many Muslim majority countries may want to implement the ḥudud, they are also modern constitutional nation states in a global environment dominated by the human rights movement. This study evaluates the major methodological, constitutional, legislative and human rights challenges facing ḥudūd implementation in Malaysia, a nation that has Islamic law embedded in its pre-colonial history, constitution and legal system. The study uses comparative analysis to contrast the ḥudūd crimes and punishments in classical fiqh with insights from contemporary jurists via adopting a qualitative approach. It then makes three arguments for the relevance of ḥudūd in Malaysia today: the many centuries-old roots and practice of Islamic law before colonial arrival; the exclusive status of Islamic law in the Malaysian Constitution which has only increased with the 1988 amendment of Article 121; and the right of the Malaysian people to exercise their self-determination democratically to legislate laws they want. The study then presents seven ḥudud-implementation models based on methodological variances in the 1) number of crimes, 2) penalty discretion, 3) juristic preference, 4) penal code, 5) acceptance of circumstantial evidence, 6) gender-based testimonial competence and 7) religion-based testimonial competence. The study reccomends that the Four Undisputed Ḥudud crimes of zina (fornication and adultery), qadhf (false accusation of zina), sariqah (theft) and ḥirabah (robbery) be considered ḥudud crimes, while the Disputed Ḥudūd crimes of shurb (drinking alcohol) and baghi (rebellion) be tried via taʻzir (discretionary punishments) and irtidad (apostasy) be decriminalized and addressed via counselling. The next section discusses legislative challenges facing ḥudūd implementation in Malaysia and remedying them via methods like, infusing the current Penal Code with Islamic principles, reenacting an Islamic Penal Code or adopting a taʻzīr-based penal code. The study ends with evaluating human rights challenges beginning with the theoretical differences between Islamic values and human rights while exploring the practical necessity to adopt a penal code that addresses the penological needs of a society to reduce crime rates. In Malaysia where there is an ever-increasing demand for Islamic law, this study offers insights and recommendations to navigate these challenges. |
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| Physical Description: | xiii, 156 leaves : illustrations ; 30cm. |
| Bibliography: | Includes bibliographical references (leaves 151-156). |