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Rethinking Islamism II
Equally important is that the punishments which cause the greatest outcry -- flogging, stoning, etc -- come under the hudud laws, which are implemented in Saudi Arabia and were introduced by General Zia ul-Haq in Pakistan in 1979, but are the exception, not the rule, in most Muslim countries.
They are, in fact, an embarrassment to the many Muslims who consider them barbaric. So when Ramadan called for a moratorium on corporal punishment, stoning and the death penalty in the Islamic world in 2005, some non-Muslims criticised him for not going further. Why didn't he say the hudud laws should just be discarded or repealed?
He explained this by pointing out that most of the authorities "are of the opinion that these penalties are on the whole Islamic [because of textual references] but that the conditions under which they should be implemented are nearly impossible to re-establish. These penalties, therefore, are 'almost never applicable'." He later declared that "Islam is being used to degrade and subjugate women and men in certain Muslim-majority societies in the midst of collusive silence and chaotic judicial opinions on the ground". The present-day use of hudud, therefore, is clearly a misuse of sharia.
This article discusses the conditions required:
Possibility of Applying Hudud Today
It is supposed that when the elements of a crime are complete, hudud should be applied. However, if these elements are not present, then ta`zeer should be applied. Ta`zeer is to be applied by the authority of the imam or judge. Applying hudud is the right of the state. Consequently, no group in any place has the right to apply hudud to a group of people away from the authority of the state.
Hudud may be suspended until there is an Islamic life comprehensively established, with all conditions guaranteed. If these conditions are met in a certain case, hudud must be applied.