Mohammad Hashim Kamali
Professor Mohammad Hashim Kamali is founding CEO of the International Institute of Advanced Islamic Studies (IAIS) Malaysia.
Ever since the Sept 3 news of public caning of two women for lesbianism (musahaqah, also sihaq, tribadism) by the Syariah High Court of Terengganu, the issue came under public scrutiny.
Questions are asked about the fairness of the sentence, whether it was harsh and gave a bad impression of Islam and Malaysia, and whether it was sound under syariah law.
Those who defended the sentence mainly referred to syariah whereas the critics highlighted respect for human rights and dignity.
This was not the first time public caning made headlines in Malaysia, but it was the first time that the punishment was carried out in a public setting, except for the Syariah High Court in Tawau — yet, the victims always seem to have been women.
The facts of the case were that two women, aged 22 and 32, were arrested by Terengganu syariah law enforcement officers for attempting to have lesbian sex in a car in Dungun in April.
They had not actually committed, but attempted to commit musahaqah, as it is not easy to commit it in a car. They were sentenced under the Syariah Criminal Offences (Terengganu) Enactment 2001.
The actual offence of musahaqah is a syariah takzir offence “the punishment for which shall be at the discretion of the court”. Penal sentences in syariah must be founded on clear proof. The details of the act committed must be known unequivocally beyond doubt. Should there be any doubt, the judge is advised to be lenient, and avoid harshness.
The two women pleaded guilty in August to lesbianism and were sentenced to six strokes of the cane and fines of RM3,300. They were caned in front of over 100 onlookers in the court, including their family members, representatives from legal bodies and NGOs, and members of the media.
Musahaqah literally means rubbing fiercely without penetration, typically the act of two women rubbing their private parts against one another, which can also occur between two males. As for the juridical basis of musahaqah, fiqh textbooks refer to the Quranic passage that speaks in praise of believing women who “guard their private parts ( li-furujihim hafizun) except with those who joined to them in the marriage bond”.
The text continues to declare that “those whose desire exceed these limits,” to be transgressors (23: 5-7). Hence, all sex outside marriage, including musahaqah, is transgressive of the syariah limits.
Also quoted is the hadith that provides: “A woman may not look at the private parts of another woman nor may she sleep under the same cover with her.”
Another hadith quoted on musahaqah declares: “When a woman [sexually] approaches another woman, both of them are adulterers (zaniyatan).”
No punishment is, however, mentioned for musahaqah, hence, the conclusion that it is a transgression (maksiyah) that may be punished under takzir. The equation of musahaqah with zina in the second hadith is in its literal sense, as zina in Arabic means transgression and sin. But, zina and lesbianism are different in that the latter does not involve penetration nor does it threaten purity of the family lineage.
Confession under syariah law is also weak evidence as it can be distorted, obtained under pressure, and sometimes made as a way out of a vexed situation. Published information on the case indicates that the two women had initially pleaded not guilty in July, but they later changed their plea to guilty after failing to secure syariah lawyers to defend them.
From April 2018 when they were arrested until September they were under immense pressure in their private lives, and then by the media, especially the Malay media, that consistently described them as “lesbians”, “lesbian couple” and “deviant couple”. The confession they made under these conditions was, therefore, questionable.
Moreover, unlike the hudud offences and qisas (retaliation), which carry fixed penalties, takzir in syariah is an open category that can carry various sanctions: from a verbal reprimand to public warning, counselling, physical and custodial punishments — and in modern times, also probation order, suspended sentence, police attendance, etc.
There is a certain mindset on the part of syariah judges, however, that takzir must consist of caning and lashing. This was the case in times past when penal systems were poorly equipped to diversify forms of penalties.
But times have changed and when there are acceptable alternatives for takzir, an effort should be made to use them.
Aspects of takzir that the judge bears in mind are the conditions of society, public opinion, and the consequences of his judgment on Islam’s good name.
Sure enough, this case received bad publicity worldwide. Almost all major media channels carried it giving Islam and Malaysia a negative profile.
Even in Malaysia itself, women are not allowed to be caned under civil law. Then also, Tun Dr Mahathir Mohamad said on Sept 6:
“The cabinet is of the opinion that this (the caning) does not reflect the justice and mercy of Islam”, as it was the first conviction of same-sex relations under syariah law.
The prime minister added that the women should have been advised instead of being publicly whipped.
In light of the foregoing, public caning in a blaze of publicity and humiliation for a first conviction with a questionable confession, in an unreceptive climate of opinion should have been more lenient.
A verbal admonition, or a suspended sentence of some kind might have been advisable to deter repetition, and would most likely have averted the unwanted publicity.
Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.
Published in: New Straits Times, Friday 21 September 2018
We know that moderation (wasatiyyah) is a major Islamic principle and way of life by the clear affirmation of the Quran. In an address to the Muslim community, the Quran conveys God Almighty’s vision of this Ummah as a community of the middle path (ummatan wasatan) to make moderation, therefore as a guide and conduct of their earthy life (al-Baqarah, 2:143).
Moderation has not only much to say about the personal conduct of individuals and the community’s collective ethos, but also on the use of the earth’s resources and care for its natural environment. The substance of this teaching is elsewhere endorsed in the Quran where the text speaks of balance (al-mizan) in the creation of this earth and the terrestrial universe, all of which have been created in a state of grand natural equilibrium, “so weigh all things fairly and do not disturb the (God-ordained) balance.” (al-Rahman, 55:7).
Three other concepts of relevance to sustainability conveyed in the Quran, are firstly, humankind’s assignment as the trustees and vicegerents (Khalifah) of God on earth to act as bearers of a mission and responsibility to establish a just socio-economic order therein (al-Baqarah, 2:30). The utilisation of earth’s natural resources such as land, water, air, fire (energy), forests, and oceans are considered the right and joint property of the people. Since humankind is God’s vicegerent on earth, they should take every precaution to ensure the rights and interests of its other inhabitants, including the animals and birds, are fulfilled, not only of this but also of future generations.
The second and still related concept is that of ‘building the earth’ (i’mar al-ard), also known as ‘umran’, or building of a humane civilisation on earth, which has been expounded in much detail by Muslim scholars, notably the Andalusian scholar, ‘Abd al-Rahman Ibn Khaldun (d. 1406 CE) and others. Justice and being good to others (al-’adl wa’l- ihsan), which are essential to a humane civilisation, envisage not only the general wellbeing of the present but also of the future generation.
The third aspect of relevance to sustainability in the Quran is the avoidance of prodigality (Israf, al-A’raf, 7:31) and extravagance (al-tabdhir, al-Isra’, 17-27). The two are basically synonymous, yet a technical distinction has been drawn between them. Israf signifies prodigality and wasteful use of what is otherwise permissible, such as one who consumes food in excess, or uses water wastefully, even for purposes of cleanliness and ablution.
Tabdhir on the other hand is spending on that which is unlawful in the first place, such as the purchase of drugs and gambling tools. With regard to the former, the text says that “God does not love the prodigals — al-musrifun,” and in reference to the latter, that they are the “the devils’ brethren,” both of which expressions signify primarily moral and behavioural aspects of human conduct, but can be the subject of legal action if they amount to manifest harm (darar).
The lawful government is then authorised, under the concept of public interest (maslahah), and just policy (siyasah ‘adilah) to impose restrictions on that which may be permissible, and also to elevate to a prohibition what is reprehensible (makruh) in the shariah. The Islamic legal maxim-cum-hadith that ‘harm may not be inflicted nor reciprocated [in the name of] Islam would in principle authorise the individual and the community to take legal action against persons and organisations, even states, that are guilty of environmental damage and destruction.
The Prophet of Islam has added his voice to say with regard, for instance, to greening the earth that “anyone who plants a tree, no human nor any of God’s creatures will eat from it without it being reckoned as charity from him.”
In another widely quoted hadith, the Prophet has said that even if one hour remained before the final hour and one has a palm-shoot in his hand, he should plant it.
In yet another hadith report, Abu Barzah once asked the Prophet: “Teach me something so that I may derive benefit from it.”
He said, “Remove the trash away from the walkways of the Muslims.”
Muslim leaders, such as the first caliph Abu Baker, advised their troops that when engaged in war with the enemy forces, they must not chop down trees nor destroy agriculture, nor kill an animal, unless it be for essential human needs.
In another hadith, the Prophet has also said that anyone who “kills a sparrow in vain, God Almighty will take him to task for it in the Day of Judgment.”
Islamic teachings are also emphatic on cleanliness in both personal hygiene and the enhancement of beauty. With regard to the former, the Quran says that “God loves those who insist on cleanliness — al-mutatahhirin (al-Baqarah, 2:222), and the latter is the subject of a renowned hadith, which declares succinctly that “cleanliness is one half of the faith”.
One can elaborate further, but even from what has been said, it is clear that sustainability, moderation, and cleanliness are entrenched in Islamic teachings and are integral to the faith of the believers. Rich and resourceful as these sources are, yet many aspects of these teachings are being neglected in the personal behaviour, speech and lifestyles of Muslims generally, to which Malaysia is also not an exception.
Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.
Published in: New Straits Times, Friday 25 May 2018
AL-AZHAR is the oldest and largest institution of higher learning in the Islamic world with over half a million students and 15,000 staff. It is internally diverse with currents of opinion that represent the purist, modernist, and liberalist camps on Islam. Al-Azhar’s towering figures of modernism and reform have opposed liberalist hermeneutics and their positions on many other issues of concern to Islam. The success of modernism within al-Azhar is due partly to its pragmatism and moderation.
Following Egypt’s 2011 revolution that brought former Egyptian president Mohamed Morsi to power, al-Azhar asserted its influence with renewed vigour. The Shaykh of al-Azhar, Ahmad al-Tayyib, opposed the purists, calling them “modern day Kharijites,” a reference to a violent group that was responsible for much bloodshed in the early years of Islam.
He also severely criticised the attacks in March and April 2011 against shrines, and blamed the purist Salafi elements for them.
Al-Azhar also took a modernist stance in the debates on Islam and state in Egypt. In June 20, 2011 document entitled Wathiqat al-Azhar Hawla Mustaqbal Misr — al-Azhar’s document about the future of Egypt — al-Azhar leadership advocated moderation in Islamic thought (al-fikr al-Islami al-wasati) that drew inspiration from famous Azharite reformers, including Hasan al-‘Attar, Rifa‘a al-Tahtawi, Muhammad ‘Abduh, Mahmud Shaltut, Yusuf al-Qaradawi and others. The document also pays tribute to non-Azharite Egyptian intellectuals, philosophers, lawyers, and artists who contributed to the evolution of Egypt and the Arab world. On the relationship between Islam and state, the document calls for the establishment of a modern state (dawlah ‘asriyyah), democratic transformation (al-tahawwul al-dimuqrati), prevention of extremism (ghuluw), misinterpretation (su’ al-tafsir), and deviationist currents (at-tayyarat al-munharifah) that rely on sectarian and immoderate religious rhetoric.
The document is supportive of a constitutional democratic state that guarantees the separation of powers, and grants the people’s representatives the right to legislate in accordance with the precepts of “true Islam,” a religion that has never throughout its history experienced a theocratic state. The document supports the decisions of an elected legislature but adds “provided that the general principles of Islamic syariah are the main source of legislation.”
Many purist leaders called for changing “general principles” to the “rulings (ahkam) of Islamic syariah,” as they argued that general principles can refer to general values such as equality and justice in a way to avoid instituting Islamic substantive law. The Supreme Constitutional Court (SCC) ruled that the state should only uphold rules that are considered apodictic with respect to both authenticity and meaning. The document’s signatories also agreed that “Islamic principles” refer to “a number of comprehensive concepts, derived from syariah texts that are apodictic in their authenticity and meaning.”
After the revolution, the Muslim Brotherhood (MB) and Salafis controlled over 70 per cent of the People’s Assembly. When an issue arose over the validity of khul’ (divorce), the Assembly consulted al-Azhar on the matter, and al-Azhar took the view the khul’ law was fully in accordance with the syariah. The khul’ law which empowers the wife to initiate a divorce, clearly represents a modernist approach to women’s divorce rights.
Because of these developments, as well as the university’s efforts in countering purist rhetoric, al-Azhar has been seen as the voice of moderation. Even Egyptian Christians, who were concerned about their freedoms in a state dominated by political Islam, have largely considered al-Azhar as the voice of moderate Islam.
After the (now defunct) revolution, Ahmad al-Tayyib wasted no time to draft a new bill to amend a 1961 Law which empowered Egypt’s President to appoint the rector of al-Azhar. The bill was passed into law in 2012 guaranteeing al-Azhar’s independence, as well as reviving the Supreme Council of Ulama’ (SCU) (Hay’t Kibar al-Ulama’ — that was abolished by Nasser in 1961. The 2012 law stipulates that SCU members must be drawn from the four Sunni mazhabs, just as they were also charged with electing the Rector of al-Azhar. This reference to the four mazhabs clearly excluded the liberalist doctrines and positions on mazhabs.
Al-Azhar’s role as a source of guidance on matters of syariah appeared in Article (4) of Egypt’s 2012 Constitution, which stated that “the opinion of al-Azhar’s Supreme Council of Ulama’ must be taken in matters related to Islamic syariah.” Commentators raised questions, however, as to whether this was binding or optional. Al-Azhar’s gain in this respect was consequently short-lived, as the 2014 Constitution removed this article altogether.
Mahmoud Azab, Professor of Islamic Civilisation at Sorbonne University in Paris, explained that since Ahmad al-Tayyib was inaugurated in April 2010, he revamped the curricula taught at al-Azhar higher education institutions that are crucial to the religious society in Egypt.
Al-Tayeb also established Bayt al-‘Aela al- Misriyyah, an institution that brings together sheikhs from Al-Azhar, prominent church clerics and civil servants to reform, discipline and refine religious discourse from extremists and solve the issues related to sectarian strife before they occur.
Amr Ezzat, an Egyptian researcher on freedom of expression commented: “Simply put, al-Azhar is not a fan of extremists; its sheikhs pass through screening to ensure they were not affiliated with the Brotherhood or Salafis. That’s why al-Azhar’s leaders mostly belong to a wasati school of thought different from that of political Islam.
The writer, Mohammad Hashim Kamali is the founding CEO of the International Institute of Advanced Islamic Studies (IAIS) Malaysia.
Published in: New Straits Times, Friday 02 March 2018
Setiap orang pastinya mengingati pengalaman terawal mereka dengan Al-Quran. Bagi Prof. Mohammad Hashim, pengalaman terawalnya dengan Al-Quran adalah bersama Allahyarham bapanya, yang merupakan seorang cendiakawan agama dan seseorang yang amat berpengetahuan tentang Al-Quran. “Allahyarham bapa saya akan bangun pada awal pagi pada waktu subuh, selalunya langit masih lagi gelap. Allahyarham juga akan mengajar saya dan abang saya pada usia 6 atau 7 tahun dari awal pagi sehinggalah waktu sarapan pagi dan waktu sekolah. Beginilah rutin kami. Bukan sahaja allahyarham bapa mengajar kami untuk membaca Al-Quran, tetapi, beliau akan mengajar kami maknanya. Sedikit sebanyak, ini membolehkan kami untuk memahami Al-Quran secara mendalam,” katanya...............................Download the full article in pdf attachment (below)
Islamic history has witnessed varying patterns of Muslim-non-Muslim relations, and contemporary Muslim societies are also seeing occasional lapses into negative patterns and advice. The launderette issue, which arose when one or two outlets attempted to offer their services to Muslims only, has, to all intents and purposes, been settled by the Malay Rulers, who rightly sought to put a stop to divisive activities that prejudiced social harmony in the country. Here, we place the issue in the larger context of human dignity as follows........................Download the full article in pdf attachment (below)
Questions have been asked on how Islam relates to science and technology. We respond to this from the perspective of maqasid, which refers to the higher purpose of syariah, and the benefits it seeks to realise for the people. Many have argued that the whole of syariah is meant to promote human benefits, which are, however, beyond enumeration and too many to count........................Download the full article in pdf attachment (below)
The Quran repeatedly invites its readers to think about the signs of God in the universe and within themselves, and to understand His illustrious presence. Thinking is a movement driven by intellect (al-Naql), and this can only occur when an initial image of the subject is attainable in the mind. Thinking cannot proceed over something of which no image exists in the mind.......................Download the full article in pdf attachment (below)
The permissibility in Islam of organ and tissue transplant and blood donation is supposed to be a settled issue here in Malaysia and elsewhere in the Muslim world, yet questions keep arising on whether this is also permissible between Muslims and non-Muslims.......................Download the full article in pdf attachment (below)
Mainstream media tend to associate extremism and terrorism with Islam, but evidence shows otherwise. The root causes of most present-day conflicts have very little to do with religion even if they may appear to have religious implications. For instance, the Israeli-Arab conflict is about land, dispossession and the right of self-determination, even if some religious fanatics are exploiting the issue for their own ends. The conflict in Kashmir is also about the right of self-determination; it is not a Hindu-Muslim conflict......................Download the full article in pdf attachment (below)