DECEMBER 29 — I read the report After public caning in Terengganu, Perlis mufti says rejection of practice does not mean opposing Islam with much interest.
Perlis Mufti Datuk Mohd Asri Zainul Abidin was reported to have said that “there is no stipulation in Islamic law requiring khalwat (close proximity) offenders to be caned in public.”
“The caning of khalwat offenders in public is not Allah’s law or that of His Messenger (Prophet Muhammad, pbuh). It is merely the authorities’ choice,” he said in a Facebook post.
According to Asri, popularly known as Dr Maza, the authorities’ choice is the punishment of takzir which in turn is ijtihadi in nature — that is, an independent ruling of an adequately qualified jurist on a matter not precisely covered by the Quran and Hadith, the two primary sources of Islamic law.
Asri’s reference to ijtihad reminds me of one of the many inspiring stories of Umar ibn al-Khattab.
Umar was the second Caliph. He knew that justice must be at the backbone of his administration, or any administration for that matter.
It is therefore not surprising that he was accredited with steps to enhance and rejuvenate the entire judicial administration to make it more effective, fair and speedy.
He sought to administer justice according to the canons of Islamic principles.
His first significant step was to separate the judiciary from the executive. After the death of the Prophet (pbuh), the first Caliph and his officials used to act as judges.
When he succeeded Abu Bakr, Umar initially retained the arrangement, which was understandable as the government and the administration were settling down and in the process of development.
Abu Bakr only served the people for slightly more than two years.
In due course, Umar separated the judiciary from the executive. It was a momentous act in world history — the judiciary became independent, separated from the executive and worked freely and without fear or favour.
An independent judiciary is now a cornerstone of government.
Umar took great precautions in the appointment of judges (qadi in Arabic). He developed certain criteria for appointment.
The judges appointed were well-known for their intelligence, knowledge and character.
One such judge was Zaid bin Thabit, the Qadi of Madinah. Zaid was well-known for his expertise on the law.
He was one of the official scribes of the Prophet (pbuh) who was called to write the Divine revelations that came to the Prophet (pbuh).
A story was related that Zayd had adjudicated and decided on a dispute as the Qadi of Madinah.
It was narrated that Umar was approached by one of the parties in the dispute. When Umar heard the nature of the decision, he said that had he himself been the judge, he would have decided differently.
The remark invoked the response: “What is there to stop you? You are the leader.”
Umar replied: “Had it been a question of applying the book of Allah and the Sunnah of his Messenger, I would have intervened, but this was not the case, and the decision was based on ijtihad in which we all stand on the same footing”.
The narration above can be read in Ibn Qudamah’s magnum opus Al-Mughni (Vol 6: 180).
Umar refused to review a decision based on ijtihad, respecting Zaid’s decision, upholding the immunity of ijtihad against arbitrary intervention and review, and more importantly upholding the independence of the judiciary.
I wish Asri could have just said what Umar said that sends a clear message to the people of the need to respect the decision of the Shariah judge.
* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.
