Hudud Threatens the Future of Malaysia

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The hijacking of the hudud issue by the federal government is a political stunt, which reminds us that a moratorium on hudud may be in order.

Once again, our nation is beguiled by the spectre of hudud, a term loosely used to reference the syariah penal code. Every once in a while, hudud emerges like an apparition with supernatural powers, possessing those who are normally calm and reasonable, and causing them to be overcome emotion. So bewitching are its powers that it often also turns erstwhile friends into enemies and even sworn enemies into friends.

Doctrinally, hudud refers to a set of punishments said to be divinely mandated for acts that breach the limits, or hadd, set by God. These crimes include theft, robbery as well as acts within the realm of personal liberty, such as adultery, fornication, intoxication and apostasy. Its infamy, however, comes less from its crimes than the prescribed punishments, among them public lashing, stoning, crucifixion and the amputation of limbs.

By no means is the hudud issue a new one in Malaysia. Attempts to implement the syariah penal code began in the early 1990s, when the PAS-controlled state government of Kelantan passed the Syariah Criminal Code (II) Enactment in 1993. Later, during PAS’s short-lived stint at the helm of the Terengganu state government, the Syariah Criminal Law (Hudud and Qisas) Enactment 2003 was passed in that state.

However, these legislative efforts never really amounted to much, due to various limitations vis-a-vis federal law and the Federal Constitution. As the federal government had hitherto maintained its unwillingness to amend laws to facilitate its implementation, the possibility of hudud becoming a reality in either of the two states remained a remote one. Until now.

Once a Spectre, Now a Real Possibility

In an astounding act of collusion between PAS and the ruling party, a government minister recently moved a motion in Parliament to fast-track a private member’s bill by PAS president Datuk Seri Abdul Hadi Awang. Since its initial tabling a year ago, Hadi’s bill, as with all other opposition motions, had always languished at the end of the parliamentary order paper. But as a result of the government’s unprecedented action, the bill was given priority over other government business and Hadi was allowed to move a motion to table his bill to amend the Syariah Court (Criminal Jurisdiction) Act 1965.

If passed, the amendments would lift the existing “3-6-5” limits on punishments imposable by the syariah courts, namely three years jail, six lashes and a fine of not more than RM5,000. In its place, syariah courts would have the powers to dispense any form of punishment permitted by Islam, other than the death penalty.

In contrast to its original version from a year before, Hadi’s bill this time around appears to have resolved the two main impediments to the syariah penal code. Firstly, crimes that fall under federal law, such as theft, robbery and sodomy, have been excluded. This cleverly circumvents the issue of explicit constitutionality, as conflicting jurisdiction no longer arises.

Secondly, the removal of the previous 3-6-5 limitations in the Syariah Court (Criminal Jurisdiction) Act instantly enables most of the punishments prescribed under hudud, specifically 100 lashes for fornication, 80 lashes for sexual slander, 40-80 lashes for intoxication and an unspecified jail term with forfeiture of property for those deemed to be guilty of heresy or apostasy.

Therefore, while the exclusion of federal crimes does indeed mean that the hudud enactments in Kelantan and Terengganu cannot be applied in its entirety, the amendments to the Syariah Court (Criminal Jurisdiction) Act would essentially allow the impl ementat ion of all other hudud punishments with the exception of capital punishment.

Furthermore, it would also mean that punishments under the two state hudud enactments could be easily augmented. As Hadi’s bill only excludes the death penalty as an option, anything else, such as forfeiture of property, indefinite jail sentences, amputation and any number of public lashes, could be implemented as long as the corresponding state enactment is amended.

For example, because syariah courts would not be allowed to sentence a convicted adulterer to death by stoning as currently prescribed in the hudud enactments, they may instead be punished by a number of alternatives, including jail time, public lashing or even castration.

Similarly, those found guilty of heresy and apostasy may even face a penalty as severe as a life sentence, or any other punishment that does not lead to death. In Malaysia, where many Muslim minorities such as Shias are considered deviant, this prospect could have severe consequences.

Datuk Seri Abdul Hadi Awang.

Hudud as a Barometer for Malaysian Society

Predictably, these latest developments have elicited much shock and outrage, including from non-Muslim minority parties within the ruling coalition. However, the lack of sophistication and holistic understanding on the matter – and this is true of both proponents and opponents – have resulted in polemics laced with confusion, emotion and division. This is not unexpected given that the debate on hudud in Malaysia has been more political than theological.

For example, one would find that there is hardly any conversation on the religious aspects of hudud, such as the contested legitimacy of its non-primary references within Islam, the variety of conflicting opinions among Islamic scholars, the technical details of its codification into local legislation1 and, even more critically, the philosophical question of its application given the conditions of the world today.

On the flipside, national discourse on the subject typically revolves around its constitutionality, its suitability and impact in a multicultural milieu, as well as its political merits. More fundamentally, hudud also serves as the barometer for the larger question on the nature of the Malaysian state – whether secular or Islamic.

And therein perhaps lies the great divide of contemporary Malaysia, between the narratives of a secular polity and an Islamic one. But this is where an alternative can be advanced. Instead of the constant and largely futile attempts to rationalise either one or the other, could the possibility not be considered that a secular state can indeed be Islamic, or that an Islamic state can be secular?

So, What is Islamic?

Although there is no conclusive approach to defining the indicators for how Islamic a society is, there is no denying that values such as justice, freedom and equality, as well as efforts to alleviate poverty, reduce economic inequality and promote social justice are congruent with the precepts of Islam. Conversely, there is ample scriptural evidence to show that Islam frowns upon vices such as greed, corruption, opulence, as well as bad governance and the suppression of human rights.

Thus, aggregating these values and practices based on Quranic teachings on the economy, human rights, political freedom, law, governance and international relations, a professor at George Washington University, Hossain Askari, decided to develop an Islamicity index to measure 208 countries’ performances in a bid to measure how “Islamic” these countries are.

Interestingly, and perhaps not so surprisingly, Askari’s findings show that not a single Muslim-majority country managed to rank in the top 10 of the index. The countries whose socio-economic achievements and values best reflect Islamic traits turned out to be New Zealand, Luxembourg, Ireland, Iceland, Finland, Denmark, Canada, the UK, Australia and the Netherlands – all of which are secular, non-Muslim-majority countries. In fact, the only two Muslimmajority countries in the top 50 are Malaysia at 38th and Kuwait at 48th.2

Though by no means authoritative, this Islamicity index paints a general picture of the state of so-called Islamic countries – most of which have been found to eschew the very tenets of Islam in the governance of their states and societies. As a result, they are by and large economically underdeveloped, unequal in wealth and opportunity, politically oppressive and socially unjust.

More significantly, the results also show that countries that exhibit the most “Islamic” characteristics are ironically secular ones, thus proving that Islamicity and secularism are not mutually exclusive concepts.

The Problem is Narrow Dogmatism

Certainly, the use of loaded terms such as “secular”, “Islamic” and even “state”, can be problematic. Rather than debate terminology and semantics, this essay seeks to shed black and white narratives that divide, and instead propose that positive elements from both secularism and Islam can not only co-exist, but also contribute towards harmonious and prosperous development.

If, for example, Islam is taken to represent values such as social justice, compassion, solidarity, freedom and respect for human rights, then there would be few who would argue against the assimilation of Islam as a way of life. Similarly, insofar as secularism means minimal interference by the state in religious affairs, equal protection for all citizens before the law, equal access to public services and guaranteed freedom of conscience, speech and expression, then it is hard to imagine that they are contradictory to Islamic teachings.

Complications only arise when narrow and dogmatic perspectives are adopted. For example, Kemalist Turkey and to an extent France represent belligerent forms of secularism that ban religious symbols and even attempt to regulate dressing, all in the name of protecting society from religion. These negative values are not only incongruent with Islam, but a suppression of basic human rights.

It is the same on the Islamic side of the spectrum as well. Any society that is obsessed with narrow aspects of ritual, advocates a return to medievalism, endorses compulsion in matters of faith, empowers bureaucracies to violate personal liberty, legislates laws that discriminate against its own citizens on the basis of gender, faith or ethnicity, breeds leaders who are corrupt and self-enriching, and engenders an enormous wealth gap between the elite and the masses, cannot by any means be called Islamic.

Unfortunately, it is precisely these so-called Islamic countries that are most adamant to implement hudud – a fact that is not lost on renowned contemporary Islamic philosopher Tariq Ramadan, who notes that the application of hudud today is often “used by repressive powers to abuse women, the poor and political opponents within a quasi-legal vacuum and with a total disrespect for human dignity.”3

Consequently, Ramadan asserts that “the Muslim conscience cannot accept these denials of justice,” and thus appeals for a moratorium on hudud, citing how the revered seventh-century caliph Umar ibn al- Khattab had suspended the administration of hudud punishments due to extenuating circumstances that would have led to the unfair application of the law.4

Ramadan’s stance on the issue should be given weighty consideration, especially when there is a stark absence of empirical evidence to show that contemporary implementation of hudud has managed to reduce crime. On the contrary, there have been more reported cases of social bias and victimisation of marginalised groups, such as women, the poor and other minorities.

A Risk Too High to Take

The sudden hijacking of the hudud agenda by the federal government in Malaysia, especially in the wake of massive corruption scandals and declining electoral fortunes, must be viewed as nothing more than a political stunt to foment further division between Muslims and non-Muslims, while bolstering its legitimacy and popular support amongst its Malay- Muslim base.

But at what cost?

Even if the ruling party succeeds in consolidating support, it may very well be at the expense of defiling the original spirit and character of the Federal Constitution, further dichotomising the population, and potentially pushing the country down a slippery slope from which it may be impossible to extract itself.

Therefore, Hadi’s bill presents the nation with a grave choice. Do we choose to reject it, and insist on building an Islamic society founded upon positive values that promote social justice, political inclusiveness and equitable development, or do we choose to acquiesce and allow Islam to be used and abused once again for the continued dominance of a desperate regime?

References

1 For an excellent treatise on this subject, see Mohammad Hashim Kamali, Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan (Kuala Lumpur: Ilmiah Publishers, 1999).

2 http://www.telegraph.co.uk/news/worldnews/europe/ireland/10888707/Ireland-leads-the-world-in-Islamicvalues- as-Muslim-states-lag.html
3 http://theamericanmuslim.org/tam.php/features/articles/tariq_ramadan_calls_for_a_moratorium_on_ corporal_punishment

4 Ibid.

Zairil Khir Johari is MP for Bukit Bendera, Penang, and executive director of Penang Institute.



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