Mehdi Hasan, Brunei and His Problem with Islamic Law

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(Taken from a guest writer’s blog)
Editor’s note: The article above has been republished with permission.

A Response to Mehdi Hasan’s Latest Article in the Intercept

In Mehdi’s latest piece on the Intercept, condemning Brunei’s decision to introduce punishment for homosexual acts, as well as adulterers and thieves, he quite frankly makes a series of ridiculous arguments that left me hesitant as to whether the piece was even worth replying to. But given his influential status as a Muslim and his huge following, coupled with the cherry-picked misleading arguments, I felt it was necessary to write a short reply.

Of course, Mehdi Hasan is blind to the obvious fact that he simply begs the question against his opponents. The fallacy of begging the question is to assume what must be argued for, using a contested premise to support his conclusion. He writes in the end of his piece that, “Stoning innocent people to death is not my definition of Islam.” Of course, the question of whether people who have committed homosexual acts –  in such a way that it is proven beyond any doubt, as is the requirement for Islamic law of four witnesses for accusations of sexual crimes – are innocent is precisely what is the question. The implication of his statement is that Muslims support the stoning of innocent people is a ghastly and thoroughly unfair one. Ex hypothesi, innocent people do not deserve any punishment whatsoever. Whether people engaging in homosexual acts are innocent is another question; One Mehdi is incapable of answering and has wilfully ignored.

This leads us on to our next point. Mehdi Hasan attempts to reason his point by claiming that there is no punishment mentioned in the Quran for homosexual acts. This, of course, paints a misleading picture. Firstly, the Quran paints a clear picture of what constitutes proper sexual relations and what falls outside of it. Secondly, the Quran condemns plainly any relations that fall outside of that sphere. Thirdly, the Quran prescribes a harsh punishment for those who have sex outside marital relations, commanding that they be whipped a hundred times and that one is not to be sympathetic as to avoid enacting the punishment.[1] Given this, it’s clear that the law prescribed by the Quran finds no place to accommodate illegitimate sexual relations. It must be reminded that the law does not desire an invasion of the private sphere so as to check on everyone’s affairs, but rather those who are confirmed beyond doubt to have committed such a crime require punishment on grounds of retributive justice and as a deterrent. It is tough then to see why, at the very least, those who engage in homosexual acts would not be worthy of at least this kind of punishment, given that they violate the law by engaging in sexual relations that are outside of what is ordained. In fact, this act appears to be worthier of punishment for the fact that it violates the natural order of things and can have detrimental consequences if left unpunished, like that of normalisation and acceptance. Remember, we are talking about those who engage in homosexual acts who are confirmed beyond any doubt, usually facilitated by four witnesses or whatever would grant the same level of certainty. Now will Mehdi Hasan be consistent and tell us whether a non-secular society is entitled to prescribe this kind of punishment given that it is explicitly mentioned in the Quran and there doesn’t appear to be any relevant distinction between the act of two heterosexuals engaging in illicit sexual relations or two homosexuals engaging in illicit sexual relations. It is my opinion, that even this would be considered unacceptable to Mehdi. And there is no other reason except that Mehdi wants us to change our outlook on homosexuality. He wants us to consider what is sinful and a perversion of the natural order something “innocent” that must be tolerated, even in a society that does not wish to implement secular values. And the response to that is, for most of us Mehdi, this is not our Islam.

Mehdi Hasan also deliberately misleads people when citing Sheikh Hamza Yusuf. He writes that “To be clear: The consensus position among mainstream Islamic scholars, whether Sunni or Shia, is that same-sex relations, like extramarital or premarital relations, are a sin. There is, however, no consensus among scholars about any earthly punishment for committing this sin. Don’t take my word for it — ask Shaykh Hamza Yusuf, described as “arguably the West’s most influential Islamic scholar.” But when we look at what Sheikh Hamza Yusuf has said in the cited link, we see a different picture. He writes, “There’s no specific punishment in the books of fiqh (Islamic laws) that relate to homosexuality per se. They apply to any illicit sexual relations, including prohibited heterosexual acts like adultery. And the punishments are strong, but they are legal fictions because they are impossible to prove. You need four witnesses to say they witnessed (sexual) penetration. In what circumstances are you going to find someone to testify to that?” Mehdi Hasan tells us that there is a lack of consensus on any earthly punishment for homosexual acts. But what he fails to convey, as is evident from Sheikh Yusuf’s text and to anyone with any basic knowledge on the fiqh of this topic, is that there is a consensus on the necessity of punishment if the strict conditions are met. Even the lack of consensus that Mehdi cites is heavily misleading, given that the dispute ranges over whether to stone or enact the same punishment given to an adulterer, which can range from one hundred lashes to death.

It doesn’t end there, unfortunately. Mehdi’s deceptions continue. On the very link he cites for the claim that “there are no authentic reports in any of the Muslim books of history of the Prophet Muhammad punishing anyone for same-sex acts”, he fails to mention two extremely relevant points that the scholar makes. The first is that the scholar in two places mentions a way in which punishment for sodomy can be extracted from the Quran, conflicting the claim that Mehdi made of there being no legal punishment for it in the Quran. The scholar writes, “the Qur’anic description of homosexuality as a fahishah (Arabic for: abomination), which is the same description of zina (Arabic for: adultery or fornication), hints that both sins entail inflicting the same legal punishment. In a further instance he writes, “All what can be said is that sodomy is a fahishah, the same way the Qur’an described zina, so it has the same legal punishment — the lashing of the perpetrator one hundred times in a public place as stated in Surat An-Nur, or imprisoning and punishing him as stated in Surat of An-Nisa’.” With regards to the Prophet not punishing anyone, the very same scholar notes that, “It is not reported that Prophet Muhammad (peace and blessings be upon him) has punished somebody for committing homosexuality, a fact that Ibn Al-Qayyim has explained by saying that “this (sin) was not known among Arabs” during the lifetime of the Prophet (peace and blessings be upon him).” [2]

So even if one denies that stoning exists as a punishment, as some scholars have done, one cannot, except by covering one’s eyes, deny the consensus that such an act ought to be punished. Now if Brunei decides to alter their laws and prescribe a different punishment, such as one hundred lashes or imprisonment, which is the law in Qatar, would Mehdi still have objections? It seems obvious that Mehdi’s problem is the very existence of punishment for homosexual acts and not merely its severity. And if that’s the case, Mehdi evidently has a problem with the Quran and fourteen centuries of Islamic scholarship.

Further still, Mehdi Hasan paints a convoluted picture of the situation in Brunei. He writes that “Here’s the problem though: Gay Bruneians no longer have time on their side.” It is as though there are paroles in the country searching anyone who is suspected of being gay to round them up. This is again fallacious because the law specifies punishment for those who engage in homosexual acts in a way that is confirmed beyond doubt. But as Sheikh Hamza Yusuf, who Mehdi wants to remind us is “arguably the West’s most influential Islamic scholar” notes, the conditions for the enactment of this law are very difficult. To repeat, Sheikh Hamza Yusuf writes, “And the punishments are strong, but they are legal fictions because they are impossible to prove. You need four witnesses to say they witnessed (sexual) penetration. In what circumstances are you going to find someone to testify to that?” So why the scare-mongering? As political analyst Adam Garrie notes in his recent article, Brunei, which inherited the capital punishment laws from colonial Britain and laws banning homosexuality, has not had a single execution since 1957. He writes that “This means that in the history of Brunei as a post-colonial independent state, the death penalty has never been used and there is no reason to believe this will change. It is a further misnomer that Brunei revised its penal code to specifically target homosexuals. The year-by-year shift from a British corpus of criminal law to an Islamic one has been one that covers all areas of the law. It just so happens that the Islamic legal view on homosexual relations has caught the eye of the international media whilst other elements of Brunei’s revised penal code have not. That being said, the illegality of same-sex relations is not new in Brunei, the issue has simply gone from one that was governed by a largely Victorian British conception of justice to one governed by a strict Islamic conception of justice.”

In my previous article, I wrote that Mehdi Hasan’s support for the legalisation of same-sex marriage for secular societies, in the current climate, endangers the fundamental freedoms of religious believers given the lack of legal protections, especially in the UK. Now it seems that Mehdi Hasan wants us also to support it in non-secular societies. For what reason? It’s not very clear. Perhaps, it is so that Dawkins ceases to compare the Islamic faith to cancer.

[1] For the first part, see as an example, 4:22-24. For the verse which specifies punishment see 24:2.

[2] Mehdi Hasan also fallaciously intimates that Islamic Law is solely derived by the Quran, as though absence of evidence in the Quran is evidence of absence outright. But the Islamic tradition does not adhere solely to the Quran when deriving rulings. Even if we assume that there are no rulings in the Quran for this matter and even if no examples were found of the Prophet enacting any punishment, this would not be the only relevant evidence for the scholars.

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