Monday, January 9, 2012

The Hadd On Zina

I think people are always confusing between zina (adultery) and rape.
Know that rape is not adultery. In a rape case, one party does not consent to the sexual intercourse. Hence some ulama categorise rape as a form of robbery to one’s dignity. Under Hudud Laws, in a case of robbery, the ultimate punishment is death or crucifying the convict and to leave the body in a public place as a show to others how the Shariah detest robbery.
Now, this is my understanding on the Hadd for Zina. (Hadd is the singular term for Hudud. When we say Hudud, it includes all of the Hudud offences. When we say Hadd, we are referring to only one of Hudud offence).
Please correct me if you think I am wrong as I stand to be corrected.
My analysis on Hadd for Zina is based on my formal tertiary education as well as my reading and understanding of the Shariah.
Mainly, Zina is a crime because it tarnishes one's honour and lineage, two of the factors which the Mawasid Shariah (Objectives of the Shariah) protects.
The Hadd punishment for Zina is divided into two. The flogging of 100 times at the back is for an adulterer who is not married and the stoning to death for an adulterer who is already married. 
“Sula” or the act of shoving a sharp pole from the anus until it comes out through the mouth was a customary punishment given to adulterer in the olden days in Malaya. Sula is not a Shariah punishment and definitely not a Hadd punishment.
Hadd for Zina is only for Muslims. Although adultery is heinous crime and detested in all religion, only some religion actually imposes heavy punishment for adultery. Islam is one of the religion.
In other words, under the Shariah, sexual intercourse out of wedlock for a married Muslim is a death penalty. If only this was stressed during pre-marriage courses, we might get fewer affairs in marriages.
 Okay, that’s the Hadd punishment for Zina.
But before we can punish somebody, we need to convict / prove that he is guilty of the offence.
There are only two ways to convict an adulterer under zina and punishing them with Hudud. The first is via sincere confession(s) and the second is if the fornicating act is witnessed by four male witnesses.
As for the first category i.e. via sincere confession (s), I included the (s) to indicate a plural form of confession because some jurist have even required the confession be made four times and done at different times - to make it equivalent to 4 witnesses. The retraction of one admission out of the four times will annul the Hadd for Zina as it is like only having 3 witnesses instead of 4.
As for the second category, the fornicating act MUST be witnessed by 4 male witnesses. Jurist have explained that these four male witnesses must SEE the penis entering and exiting the vagina a few times and are super damn sure that the sexual intercourse really did happened. The level is beyond reasonable doubt as any traces of doubt would destroy the certainty in imposing Hadd punishment. The moral behaviour of each of the four male witnesses must also be of tip top character and can be challenged. Some jurists have debated the acceptance of female witnesses. That could be another point of law as well.
In my mind, the only way for the second category to happen is if the couple were fornicating in PUBLIC. Some may say that if an unmarried Muslim couple living together and have kids, this could be a good case for Hadd punishment. I beg to differ.
I have some reservations here. DNA test may be accurate do determine paternity of the child but that should not be the benchmark to prove Hadd punishment as there are no 4 male witnesses who saw the intercourse. Using DNA is to establish an evidence after the act of intercourse when Hadd punishment is for the act of intercourse. Hadd punishment is not to eliminate all traces of adultery. Ta’zir punishment could be used as an alternative punishment but not Hadd.

The four male witnesses would never be able to SEE the sexual act if it was done in private because SPYING or CCTV footage is not a valid method of enforcement or evidence for Hadd in Zina. It may be a admissible for Ta’zir punishment but I don’t agree it to be extended for Hadd. Another mind boggling factor is this. If these 4 male witnesses are of good moral behaviour, isn’t it their duty to stop an evil act when they see it (amar ma’ruf wa nahi mungkar) and not wait and look at the couple to make sure that they see the penis entering and exiting the vagina?
*OOoohhh... Mat Skodeng*
In fact, I would go further to suggest that the 4 witnesses must have tried to stop the couple but the couple couldn’t be bothered and continued romping each other in the clear view of the 4 male witnesses.hmm.. To my mind, this means that the Hadd for Zina is and will only be applicable when the moral value of the society is at its worst level and people start to fornicate in public without any shame or embarrassment. Even after attempts to stop the couple, they still continued fornicating in public.
I was told and I read as well that there has not been a single case of Hadd punishment for Zina on the basis of conviction. All of the previous convictions are based on confessions. I stand to be corrected as I do not have the any statistics to back this finding.
At the end of the day, Hadd is a punishment to free the sinner from punishment in the Hereafter which is way greater than in this world. One may be committing Zina in private and not be caught but that does not mean that Allah does not know what you are doing. If you think you can commit a sin in a place in this world where Allah would not know and cannot see you, by all means, go ahead and do it. And please tell me of this place as well because as far as I am concerned, nothing escapes Him. He knows what is apparent, hidden, before and after.
I think that this should prove that Hadd for Zina more of a preventive measure for others not to do it rather than deterrent punishment for those convicted. Well, it is a deterent factor if you are not married but if you are married, there is nothing to deter you from comitting the crime because dead people cannot commit crimes...
But we still need to have it as Hadd for Zina available to Muslims who fall under the first category where the adulterer wants to confess of his sin and get rid of the sin's burden from his shoulders by facing the punishment provided by Allah.
Be that as it may, if the burden of proving the couple does not reach the level of Hadd for Zina, the adulterer may still be punished under Ta’zir which is the discretionary powers of the Court. They can still be fined or imprisoned or any other punishment as the authority deems fit.
In conclusion, I don’t think any civic minded person should disagree with Hadd for Zina.
What do you think?
Blog adjourned.

4 obiter dictum:

Shazeea said...

Nice explanation.

Isn't there a hadith where someone came to RasulAllah wanting to confess to zina and the RasulAllah told him to go pray two rakaat and when the man came back and tried to talk about it he told him to keep quiet? I might be confusing the two rakaat with a similar hadith for another sin but I'm quite sure there was one instance where the remorse of the man was enough for RasulAllah.

two_one said...

there is a hadith that the Prophet asked the adulterer who confessed to go back and rethink. He came back 4 times to confess. after the fourth time, he was punished. that's the basis when i said that each confession is like one witness. during the four times, the Prophet did ask him to pray and keep it hush and saying that he must be imagining that it happened when it really did not amount to zina and all sorts of excuses to create doubt in the adulterer's confession. after the fourth time, it proves that he was certain and adamant to purify himself through the punishment. that was why he was finally punished. Allahu A'lam.

Anonymous said...

Sorry, but isn't it in the same hadith also, Prohet pbup did say that it's better to keep his 'act' in silent & repent instead of confessing because the punishment for adulterer is indeed, heavy. Sorry if I'm wrong.

Anyhow, may I share your post in my blog? My mak asked me about hudud last time & I couldn't give her a proper answer. Then she told me that as a law graduate from IIUM, I should've known the answer.. ermm shame on me ha!

two_one said...

Salam Umi,
according to my research, the Prophet did ask a women to go back and repent on her first confession. She then confessed that she was preganant. She confessed a number of times and then the Prophet instructed her to deliver her child, wean her for two years and then she was ordered to be stoned.

haha. no worries, you can show her this post but this is not a fiqh ruling. you should tell your mak that a good lawyer isnot one who knows all the answer but knows where to find the right answer. thereafter, go and find and islamic scholar and ask for his fiqh opinion on that matter as i am not a fiqh scholar. :)