PAS’s ill-conceived Hudud move

Now that the issue of hudud has re-surfaced with even more serious implications for the nation as a whole, we should remind ourselves of the magnitude of the challenge that faces us.

Chandra Muzaffar

From media reports, it appears that the Islamic Party of Malaysia (PAS) is determined to table a Private Member’s Bill in the June session of the Dewan Rakyat that will seek to facilitate the implementation of hudud — the Islamic penal code — in Kelantan. The implementation will be based upon the Hudud Bill adopted unanimously by the Kelantan State Legislative Assembly in November 1993. I shall attempt to appraise the wisdom of doing this from three closely inter-related perspectives — the concept of hudud in general and as enunciated in the Bill; the practice of hudud in other countries; and the local context in which hudud would be implemented.

The Concept.

The Kelantan Hudud Bill has been subjected to a comprehensive analysis in Muhammad Hashim Kamali’s Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan (Kuala Lumpur: Institut Kajian Dasar, 1995). Kamali, one of the world’s leading Islamic jurists, reveals in detail the weaknesses of the Bill, including those pertaining to its categorisation of hudud offences and how it contradicts the Quranic prescription on punishments and why it conflicts with the Malaysian Constitution and the Penal Code. All members of Parliament, from the government and the opposition, Muslims and non-Muslims, should digest the contents of the book before debating the PAS sponsored Bill. They will realise that the PAS approach is focussed essentially upon modes of punishment and not upon the fundamental principle of justice which is the overriding concern of the Quran. When justice is one’s leitmotif one would first strive to ensure that the social ethos and the power structure conduce towards equity and fairness rather than preoccupy oneself with detailed descriptions of how different forms of punishment would be meted out. Besides, the concept of hudud — or boundaries — in the Quran has a much wider and deeper meaning and is not confined to its penal aspects. It is also employed in relation to fasting, family laws and inheritance and indeed embodies all of God’s teachings and guidelines. By over-emphasising punishment, PAS has also side-lined provisions on repentance and reformation which are crucial to all those instances in the Quran where punitive measures are mentioned in the context of specific offences.

The Practice.

It is not just the failure to appreciate the spirit of compassion and justice that accompanies legal provisions in the Quran that renders the PAS move to introduce hudud problematic. The party and others who subscribe to a similar view have not examined the realities surrounding the implementation of hudud. Most Muslim majority states do not provide for hudud. The most populous Muslim nation on earth, Indonesia, has not incorporated such a provision into its legal system though one of its smaller provinces, Acheh, has introduced elements of the Islamic penal code while retaining civil law in other areas. The change is drawing more and more criticism from within Achenese society itself. Turkey, one of the more prominent Muslim states today, with a leadership rooted in an Islamic movement, has stayed away from hudud laws. Arab states such as Egypt, Jordan, Lebanon and Syria, among others, have not included hudud in their criminal justice systems. In some instances, their constitutions proclaim a general commitment to Sharia as “a way of life.”