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How will PAS deal with rape and adultery in the shariah system? – Nawawi Mohamad Published: 22 December 2014
Rape and adultery are among the most common crimes committed by humans. These crimes occur daily and in Malaysia it is reported that the number of births outside wedlock among Muslims is staggeringly high. According to the director of the National Registration Department (JPN/NRD), Datuk Alwi Ibrahim, the total for the whole country for 2013 was 17,303 cases. In its endeavour to implement the shariah law in Kelantan, PAS must detail how it will tackle the issues pertaining to these two crimes in the shariah system. This is a very important issue because, unknown to many Muslims in Malaysia, in some of the so-called Muslim countries that implement the shariah law, in a rape case, the victim (woman) will always end up being punished instead of the rapist. The main reasons for this unfortunate outcome from the trial are because i) the victim is not able to bring forward four credible and trustworthy male witnesses and ii) the victim asked for it. Somehow the shariah court judges and the Muslim scholars in countries like Afghanistan and Pakistan are biased in blaming the victim instead of finding the truth in the actual circumstances. It seems that a clear injustice has been done in the name of Islam. Ironically, the basis of the law that these countries adhere to is the Surah An-Nur verse 4 (Quran-24:4) which states: "And those who accuse free women then do not bring four witnesses (to adultery), flog them..." and verse 13 of the same Surah An-Nur verse 14 (Quran-24:13): "Why did they not bring four witnesses of it? But as they have not brought witnesses they are liars before Allah." But this clearly applies to someone accusing a woman of adultery and that someone must bring forward the four trustworthy male witnesses. However, somehow the Muslim scholars have decided to use the same principle in trying rape cases. Isn’t it ridiculous? But why is it so difficult for the Muslim scholars to differentiate between rape and adultery? Rape and adultery are two different issues and should be separate in law. Rape is an act of violence and coercion and the inflicting of suffering on a victim, and is not consensual, whereas adultery is consensual, freely chosen. As a result of the skewed principle, rape victims will always face double or more than double jeopardy. Those who rape a woman will always go scot free because nobody will be willing to come forward as witnesses, and are they trustworthy? If really there are four witnesses, then why on earth didn’t they try to prevent the rape from happening? They must be cohorts too! These four are untrustworthy rascals! But what about incest? Will the woman be punished for adultery too? If the woman is unmarried and becomes pregnant, she will eventually be accused of adultery. It seems that even if a family member impregnated the women, the perpetrators will go scot free again. The victim will not be able to bring forward any witnesses. In an adultery case, the woman’s partner could also go scot free because he can always deny it and put all the blame on the women. So it seems that nobody in authority will bring the man to court to receive the same punishment since adultery is consensual. In the case where the woman asked for it, Muslim scholars refer to Surah Al Ahzaab verse 59 (Quran – 33:59) which statesL: “O Prophet! Tell your wives and daughters, and the women of the believers, that they should cast their outer garments over their persons. It is expected that they will be recognised and that they will not be molested. And Allah is Oft Forgiving, Most Merciful.” Normally, rapists know where and how to choose their victims: when they are most vulnerable, either in an empty public place, or in their homes. Sometimes the victims are abducted and gang-raped. Therefore no matter how covered, protected and modest the woman may be, she is always vulnerable. And the afore-described skewed principle would only embolden the perpetrators because even if caught, they could always say that the woman asked for it. Remember, when the victim accuses the rapist of raping her, she must prove that he did it to her, with witnesses, and also prove that she did not ask for it. In this case, rape can only be proven if the rapist confesses. But would anyone be willing to confess? Yes, maybe one in a million. Thus rape and similar crimes should not be categorised under hudud per se; it should be under hirabah (hudud robbery rule in a wider concept). I have touched on this concept in a previous article published by The Malaysian Insider. Then only can the rapist be punished and the victim be vindicated.
The judge in the shariah court must play his role to ensure that the victim is given a fair trial and use every means possible to ultimately get a confession from the accused (rapist). He must get some very compelling evidence. This could be done with scientific methods, forensics, videos and other physical evidence and known circumstances. So a grim reminder to Muslims in Malaysia: if PAS decides to practise the same skewed principle in Afghanistan and Pakistan and other Muslim countries that adhere to the same principle, being raped is the end of the world for you. – December 22, 2014. * Nawawi Mohamad reads The Malaysian Insider.
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Post time 22-12-2014 07:02 PM
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