Oleh Yam Phui Yee
24 Oktober 2011.
Hudud: The dissenting voices
In the current debate on Hudud – the Islamic Penal Law — Universiti Teknologi Malaysia law professor Prof Dr Shad Saleem Faruqi has come out with the boldest statement so far on the topic.
He said that the Federal Constitution was the biggest obstacle to enforcing Hudud because the state government had no power to act upon or make laws pertaining to crime, which was under the Federal List. In addition, the police, prisons and rehabilitation centres were also under the federal government’s jurisdiction.
The state Syariah courts may only decide on Islamic criminal matters not dealt with under federal law, such as khalwat (close proximity between persons of opposite sex who are not married or relatives), zina (illicit sex), not fasting during Ramadan and missing Friday prayers.
Even so, Schedule 9, List II, Paragraph 1 of the Federal Constitution and the Syariah Courts (Judicial Criminal) Act 1965 limit the penalties that Syariah courts can impose.
“The limit is three years jail, RM5,000 fine and six lashes. Any penalty other than these is unconstitutional. So you can’t impose the death penalty,” said Shad.
As the Syariah is only applicable to Muslims, and Hudud comes under it, Shad disagrees with having two different sets of criminal laws as it would create difficulties in prosecutions and cause dissatisfactions to those close to the accused.
According to Shad, 90 to 95% of the offences in the Quran were already in the Penal Code except that the penalties were different.
“It was felt by the forefathers in 1957 that a religious law of one community should not apply to other communities. I think that is a compassionate, moderate and admirable point of view,” he said.
“One has to ask, what is central to the criminal code – the prohibition or the penalty? To me, the first part is more important. How transgression should be dealt with is secondary issue.”
His point of view should bring relief to the opponents of Hudud, but it does not, as the concern remains as to whether non-Muslims will come under its purview.
The proponents of Hudud argue that it would only be imposed on Muslims, but Dr Ng Kam Weng, the research director of the Kairos Research Centre, said that this was only true in theory.
“In practice, it will not work in the context of a multi-racial and multi-religious Malaysia,” Ng said.
He explained that unlike the homogeneous Arabic Muslim society in Medina, Malaysia was a heterogeneous society with a functioning civil law based on common grounds between Muslims and non-Muslims and constitutional provisions of equality, regardless of their religious beliefs.
“Since the system is working reasonably well, we should refrain from introducing new laws like Hudud that can only undermine the long-standing co-operation between the various religious communities,” Ng said.
In addition, he said, East Malaysians were assured when Malaysia was formed in 1963, that the Constitution would remain secular. Thus, introducing Hudud would amount to Muslims breaking faith.
Ng said that although none should interfere with the Muslims’ desire to live by a moral code, this should not preclude the right of non-Muslims to evaluate whether Hudud would be helpful to the society at large since they share the same public space and Hudud would affect them.
He believes that two equal, coexisting legal systems with different punishments would lead to injustice and that, more importantly, the legal system that is backed by the stronger political power (Hudud) would push aside and displace the legal system with less political backing (civil law).
“Implementing Hudud will inexorably lead to injustice to non-Muslims, even though the initial implementation is supposedly only for the Muslims. The law cannot be determined or implemented by the majority at the expense of the minority – not in a Constitutional democracy,” he said.
“With much regret and with respect to my Muslim friends for their commitment to morality, in the light of the legal contradictions or complications and the injustice to non-Muslims that will certainly follow, we should not implement Hudud law,” he said.
Sisters in Islam (SIS), an NGO which presents a liberal and progressive face of Islam, is also against the implementation of Hudud in the country. In a recent statement, it said that Hudud violates fundamental liberties, metes out maximum punishment without room for repentance and is unlawful because it discriminates based on gender and faith.
“A woman cannot be a witness. People of other faiths also cannot be called as witnesses. In effect, three-quarters of Malaysia’s population will be disqualified as witnesses,” SIS said in the statement.
Slightly more cautious, Islamic Renaissance Front (IRF) director and chairman Dr Ahmad Farouk Musa said that justice must be prioritised and both religious texts and context of today’s society should be examined before Hudud is implemented.
He cited an exception when Hudud was not implemented. He said that the Caliph Umar al-Khattab, who was famous for the expansion of the Islamic empire, suspended Hudud during a severe draught.
“Oppression, be it apparent or as a result of poor administration, a flawed economic system, corruption, nepotism and the like can be regarded as a long ‘draught’ in themselves. Thus, the implementation of Hudud laws that do not regard the increasingly complex contexts of the Muslim world is not a sign of loyalty to the teachings of Islam,” he said.
Social conditions that would enable Hudud to be implemented are practically impossible to reconstruct, he added.
“Thus, those laws are basically inapplicable. At best, Hudud is to be seen as a preventive mechanism,” he said, adding that the focus should instead be on spirituality that demanded education, justice and respect for pluralism.
Hudud as a “preventive mechanism” is a point that is echoed by PAS central committee member Dr Dzulkefly Ahmad who believes the beneficiary of Hudud will be those whose lives will be safeguarded by the deterrence of the law – be it Buddhists, Hindus or Christians.
PAS’ agenda for an Islamic Malaysia is no secret, and Dzulkefly pointed out that its aspiration for a “Negara Berkebajikan” (Nation of Care and Opportunity) emphasises accountability, transparency and meritocracy.
PAS spiritual leader and Kelantan Menteri Besar Nik Aziz Nik Mat is unwavering in wanting to establish Hudud in Kelantan.
In 1993, as a fulfillment of its promise in the 1990 general elections, Kelantan passed the Syariah Criminal Enactment 2 1993, which was never gazatted. The then prime minister Tun Dr Mahathir Mohamad prohibited it despite PAS’ insistence that it would only be imposed on Kelantanese Muslims.
Perhaps it was out of his understanding of the multi-religious nature of this country that current Prime Minister Datuk Seri Najib Tun Razak also rejected the implementation of Hudud, saying that the principles of good Islamic administration could be achieved through the existing system.
Hudud in the Quran and Hadith (sayings and acts of the Prophet Muhammad) covers crimes in Islam such as apostasy, theft, robbery, adultery, false accusation of adultery, drinking alcohol and blasphemy, and prescribes punishments such as stoning, amputation and caning.
It is the punitive punishments in Hudud that form the major source of concern for non-Muslims, causing them to reject it. But Dzulkefly stressed that the main purpose of Syariah was to ensure justice and fairness for all, more than to punish offenders.
He said that Hudud must not be viewed separately from the five imperatives of Syariah: the preservation of religion, mental state, lives, purity of lineage and property.
Stoning an adulterous married person, for example, was not only to deter others from committing illicit sex but also to preserve the purity of lineage, explained the Kuala Selangor Member of Parliament.
Dzulkefly added that one of the reasons why Nik Aziz wanted to implement Hudud was because he truly believes that its implementation will bring down crime.
A Christian pastor and academic who only wished to be known as Rayhen said that Hudud, in principle, was not acceptable to Christians but if Muslims wanted it strictly for themselves, it was their religious right to do so. He was concerned that Hudud would create further complications in cases involving Muslims and non-Muslims.
Speaking for the Buddhist community in Malaysia, Leslie Tilak, the president of one of Kuala Lumpur’s prominent temples, the Buddhist Maha Vihara, said that Buddhists were satisfied with the existing Constitution that regulates all religions in the country.
He said the Buddhists would look to the Malaysian Consultative Council for Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) for a decision if the government ever wanted to implement Hudud.
Meanwhile, MCCBCHST, in a statement, called for all parties to respect the Federal Constitution and said that changing the fundamental character of a constitution because of the majority, was dangerous.
According to the MCCBCHST, the rights of minority groups and even of one individual must be respected. “A single citizen shall be entitled to challenge, to uphold his rights,” it said.