With some exceptions, the 1983 Penal Code of Sudan, containing hudud provisions, was applied to both Muslims and non-Muslims, including those living in the south, now an independent country.
Among the many weaknesses of the hudud legislation in Sudan were the extensive powers given to courts to punish people at their discretion based apparently on the Islamic penal law principle of ta’zir (discretionary punishment intended to deter) even if a given act was not identified as a crime in the Penal Code.
Another striking feature of the hudud legislation of 1983 was the lowering of the standards of evidence for proving hadd crimes (Evidence Act of 1983). For example, if the required witnesses of upright character (‘adl) that could testify from direct observation for convicting an accused of a hadd crime were not available, the court could use the testimony of other witnesses at its discretion.
As a result, a person could be convicted of a hadd offence on the basis of evidence of a lower standard than that specified in the authoritative text. This increased the possibility that innocent persons would be convicted of crimes they did not commit. This increased the likelihood of a miscarriage of justice, thus defeating a leading objective (maqsad) of syariah, which is to administer justice.
Moreover, Article 458.3 specifies that if a defendant cannot be punished with a hadd punishment on grounds of ambiguity (shubha), the court may still punish the accused in any way it sees fit. Punishment in these cases was typically of a ta’zir or discretionary nature. It commonly took the form of flogging.
The 1983 Evidence Act also admitted circumstantial evidence. Possession of stolen goods would be considered proof of theft (Article 320). Pregnancy of an unmarried woman would be considered proof of illicit sex (Articles 77-78, Evidence Act).
The first ruling appears to have disregarded the possibility that stolen goods could be planted in the house of the accused. The second ruling appears to disregard the possibility that the accused may have been raped.
Additional acts were identified as crimes and made punishable. One example of a new crime is “attempted illegal sexual intercourse”. Such a “crime” is not identified in the sources of Islamic law. Even more striking is the evidence required to convict someone of this “crime”.
It is enough to convict a person of “attempted illicit sexual intercourse” if the accused is merely seen together in public with a person who is neither his wife nor a close relative.
According to Article 3 of the 1983 Judgments (Basic Rules) Act, in cases where crimes are not identified in the Penal Code, the courts are obliged to apply the syariah. A different law made the propagation of a new interpretation of Islam tantamount to apostasy. It was on the basis of these laws that Mahmoud Mohammed Taha was convicted of apostasy in 1985 and executed.
The following year, the Law Concerning the Bases of Judicial Sentences was amended to ensure that the propagation of a new interpretation of Islam would not be equated with apostasy. Later in the same year, the Sudanese Constitutional Court declared Mahmoud’s death sentence unconstitutional. Unfortunately, the death sentence had already been carried out.
Because of the many weaknesses of the hudud ordinance of 1983, the new Sudanese Penal Code was passed in 1991. This Code is more in line with classical fiqh than its predecessor. However, the 1983 Judgment (Basic Rules) Act is still effective, which means that the courts can still convict people of offences not identified in the Penal Code but punishable under the Syariah. Death sentences by stoning continue to be passed to this day, although they are typically commuted.
It is clear that the implementation of hudud in Sudan took place in a haphazard manner. A series of departures from the text significantly increased the possibility of frustrating the primary objective (maqsad) of the syariah, which is to ensure justice. Nowhere was this more evident than in the treatment of Mahmoud.
It is to be hoped that this debacle will not be repeated, anywhere in the Muslim world. The implementation of hudud in Sudan followed a distinctly punitive, unforgiving path, lacking in the Quranic qualities of mercy and forgiveness. As such, Sudan does not offer a good role model for other Muslim nations to follow.
What is required is a balanced approach, one characterised by moderation (wasatiyyah), a central Quranic concept. While Sudan is different from Malaysia in many ways, it is to be hoped that the experience of Sudan will not be repeated here.