Hudud – Let us agree to disagree

Mohamed Hanipa Maidin

Mohamed Hanipa Maidin, Harakah Daily

This article is not aimed at convincing anybody especially our non Muslim brothers. It is merely to share the underlying philosophy as to why an Islamic party such as PAS will never abandon hudud laws in its struggle.

To begin with, PAS has never hidden its desire of implementing hudud from the public discourse. The hudud discourse has dominated the public arena for many, many years. In Kelantan, PAS has been revealing its intentions of implementing hudud in its manifesto at every general election. The people of multi racial Kelantan, despite the majority being Muslim, has duly given the mandate to PAS to govern the state vis-à-vis the hudud agenda.

Hudud predates Pakatan Rakyat. In Pakatan , DAP and PKR are fully aware of PAS’ intention. PAS recognises hudud is not Pakatan’s agenda but it does not hinder the political cooperation as these three parties are sharing many other common values and objectives. PAS and DAP have agreed to disagree on hudud. But such a disagreement does not mean Pakatan cannot work together to face the biggest threat which is destroying our beloved country, that is Barisan Nasional.

Islam regulates every part of a Muslim’s life even his mundane activities. You cannot see any single Muslim activity which is not regulated by Divine law. Such laws are embodied either in the Quran or the living and practical example of the Prophet Muhammad p.b.u.h. Muslims believe that Muhammad was a perfect example of a human being. There was nothing in his life hidden from public scrutiny, even his private life. His entire life was made transparent to us so that there would be no excuses for anybody to say that Islam had failed to provide a practical guidance to human problems.

As crimes are part and parcel of our existence, Islam does not abandon the law of crimes. Islam has its own criminal justice system. Hudud laws are part of such a system.

Crime is an old phenomenon. Its existence coincided with the creation of human beings. The first crime was a killing committed by the elder of Adam’s sons against his very own brother. Every civilization offers its own legal solution to crime prevention. Islam is not an exception. The only difference is that Islamic criminal law is Divine-based. In other words as far as Islam is concerned crimes are dealt with by a set of laws derived from Divine guidance. God knows why men commit crimes and God also knows how to provide solutions to such crimes.

Anyone who studies legal jurisprudence would be fully aware of natural law. Natural law theory believes that law has transcendental and metaphysical values thus immoral and unjust laws are excluded from the realm of law. The natural law cannot be divorced from the belief system which acknowledges the Omnipotence and Omnipresence of a Supreme Being to whom the ownership of such laws belong to. Only with the emergence of positivism had the morality of laws expounded by natural law theory been gradually abandoned.

In the name of certainty positivists will tolerate the existence of unjust laws. In positivist theory judges have to stick to the black letter of any law even such laws are cruel. That is why we can see a myriad of unjust and draconian laws such as the ISA, Sedition Act, Sosma etc.,  being endorsed by our judges.

The source of hudud law is Almighty God thus there is no room for human interference. Human beings are only the trustees of such laws and specifically entrusted to implement them. To their credit, hudud laws are only reserved for certain crimes only and these crimes are of a serious nature. The hudud laws have specific purposes namely they are divinely designed in order to protect five essential things of one’s life that is religion, life, reason, lineage and property.

Let us take as an example the crime of adultery.Yes, Islam prescribes a very harsh penalty against such a crime. But such a penalty must not be viewed in isolation from the entire scheme of familial relationship which Islam seeks to duly protect. The penalty for adultery is in fact the last resort. Proving such a crime is almost humanly impossible except when there is an unqualified confession. Even a confession can always be withdrawn at the stage of execution.

In fact Islam promotes and simplifies marriage for only through legal marriage is human lineage duly preserved. Whilst marriage is greatly promoted in Islam at the same time it closes all avenues leading to adultery. Adultery is prohibited because it brings with it all the evil consequences which are too well known to be stated here.

Education and hudud laws work hand in hand. The prophet Muhammad s.a.w had clearly explained to us the rationale for prohibiting adultery or unlawful sex. A man met the Prophet and asked his permission to commit fornication. The Prophet, being the teacher of mankind, did not reprimand the man. On the other hand the Prophet politely asked him the following questions. “Do you have a mother or a sister or a wife?” The man answered in the affirmative.  The Prophet then asked him “Would you agree to any man to have sex with your mother or your wife or your sister? The man said “No I wouldn’t !” . Then the Prophet explained to the man the rationale as to why adultery or fornication is not a good thing. He said ” if you commit adultery with any woman she is either someone’s mother or wife or sister thus if you cannot tolerate any such act against any of your beloved women then how can you tolerate adultery against someone’s beloved women?

Criminal law is a part of human nature and necessity even if Islamic law does not exist. It is unthinkable not to have laws dealing with crimes. So long as human beings are endowed with evil desire, crimes will definitely exist thus we need laws to stamp them out.

As far as hudud laws are concerned they are, relatively speaking, quite difficult to prove crimes committed under such law. The standard of proof in hudud is extremely high that is beyond any shadow of doubt. In other words whenever hudud crimes are committed the prosecution has to prove all the ingredients of the charge in certainty. Any iota of a benefit of doubt must be ruled in favour of the accused person. This is based on a trite maxim – doubt invalidates hudud punishment. It is also based on a trite principle derived from the tradition that it is better for a judge to err in acquitting ten guilty persons than to convict a single innocent person.

Why is the standard of proof extremely high in hudud?  The answer lies in the following rationale. Islam believes that if Muslims, either the ruler or the ruled, lead their life based on the true teachings of Islam the non existence of serious crimes would be almost certain. Be that as it may whenever the state says there is a crime taking place the state is obligated to prove such crimes really exist in certainty.

From this it may be fairly said that hudud law, despite being Divine laws, is only capable of dispensing true and effective justice when it is implemented in a perfect Islamic environment where good governance and sound policy prevail. On the contrary in the absence of good governance, hudud law, despite its aim of bringing genuine law and order, may be counter- productive especially if such laws are implemented by a failed state.

While it is not wrong for the non Muslims to be duly wary of hudud law as such law is still foreign to them it is also not right to reject such law simply because it is Islamic law.  After all our laws are neither Malay, Indian nor Chinese .On the other hand our criminal laws are derived from foreign lands.

When Kelantan seeks to implement hudud law such initiative does not really go outside the periphery of our federal Constitution. In fact the Islamic criminal law is already there in all states in Malaysia and the Muslims are currently subject to such laws which are dispensed in syariah courts. You may find, for instance, a crime of adultery or false accusation (qazaf ) in such laws currently being enforced. The only problem is that in such laws the punishment for crimes falling under hudud law does not reflect the true punishment envisaged by the Quran or the Hadith. Kelantan only seeks to bring such laws in accordance with the true teachings of Islam. In other words PAS is merely trying to rectify the mistakes committed by Umno when the latter simply failed to ensure that hudud law is put in its proper place.

Islamic law is under the jurisdiction of the state as clearly provided under the state list in the Ninth Schedule of the Federal Constitution. The Ninth Schedule states in explicit terms that it is the state’s power to enact Islamic law. By virtue of Article 74 (4) of the Federal Constitution the general words in Ninth Schedule such as the term of Islamic law cannot be delimited. Unfortunately the Federal Government has usurped and transgressed the legislative power of the state  by enacting a federal law seeking to delimit the term of Islamic law by limiting the power of the Syariah court to impose punishment based on hudud law.

In Mamat bin Daud v Public Prosecutor, we have a Federal court ruling which held that section 198A of the Penal Code was unconstitutional in that  in pith and substance  such a provision dealt with syariah matters thus the Federal Government had transgressed its legislative power by enacting law which was under the jurisdiction of a state.

It is submitted that the same happens here. It is not the hudud law which is unconstitutional. On the other hand the federal law namely section 2 of the Syariah Court (Jurisdiction of criminal matters) Act 1965 which is unconstitutional for it seeks to restrict the Syariah court’s power dealing with syariah criminal matters even though such power is within the state Legislative’s competency.

A dual system does exist in Malaysia and it is recognised by our Constitution. Hudud law which is only applicable to Muslims does not go beyond such a dual system. It will operate within the system.