Hudud – why now?


Why does Umno now appear more receptive to Pas’ attempt to push through private members’ bills on the hudud? Francis Lohdiscusses the backdrop.

Francis Loh, ALIRAN

The Kelantan state assembly passed the Kelantan Syariah Criminal Bill (II) to introduce hudud law in the state of Kelantan on 25 November 1993. This Bill was passed unanimously by all 36 State Assembly members, including two from the Barisan Nasional. That was more than 20 years ago.

But the law could not be implemented because it required an amendment to the Federal Constitution. For under Schedule Nine of the Constitution, “civil and criminal law and procedure, and the administration of justice” – except in the case of “Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law…” etc. – falls under the purview of the federal, not the state government.

Back then, Parliament which, was dominated by Umno-BN, was not in favour of amending the Federal Constitution to facilitate the implementation of hudud laws by the Pas government in Kelantan. So the Pas government did not try to introduce a private member’s bill in Parliament then.

Admittedly, after its improved performance in the 1999 general elections, Pas tried to implement hudud laws in the states of Kelantan and Terengganu which had fallen under its control following the elections. This attempt led to divisions within the Barisan Alternatif (BA) coalition and ultimately to the withdrawal of one of its partners, the Democratic Action Party (DAP) from the BA. Perhaps drawing from this experience, Pas hesitated to push for hudud laws in the intervening years, until now.

Unconstitutional and discriminatory

However, then, like now, there occurred much public debate, resulting in much acrimony, over the matter. For the late Karpal Singh, the matter of introducing hudud law should not have arisen in the first place because Malaysia is a secular state. For Karpal, the Federal Court had ruled in 1988 (Public Prosecutor vs Che Omar Che Soh, with Tun Salleh Abbas presiding) that Malaysia operated on the basis of secular laws. Introducing hudud laws contradicted the present Constitution. Accordingly, the implementation of hudud laws required rewriting the entire Constitution. Karpal reiterated this stance in an interview, apparently his last, with The Rocket, his party’s organ, just before his untimely death.

Sisters in Islam (SIS) and other women’s groups then, and now, have argued that the implementation of the Kelantan Syariah Code, as proposed by the Pas government, infringes upon Article 8(1) of the Constitution, which declares that: “All persons are equal before the law and entitled to the equal protection of the law”. Further Article 8(2) provides that “there shall be no discrimination against citizens on the grounds of religion, race, place of birth or gender in any law…”. The presumption of zina (illicit sex) in the case of a woman who cannot find four male witnesses to back her allegation of rape is just one example which highlights how women can be discriminated against under the proposed Code. This certainly goes against the principle of justice that Islam (as in other revealed religions) categorically champions.

Medical practitioners have also been dragged into the debate this time. In reply to comments by Kelantan state authorities that surgeons would be responsible for amputating limbs as required once hudud is implemented, the Malaysian Medical Association (MMA) has unequivocally voiced its opposition to surgeons getting involved in the matter, stating that it goes against the Hippocratic Oath to which all doctors subscribe. The MMA’s position has been supported by Dr Ahmad Farouk, a surgeon and leader of the Islamic Renaissance Front. But groups like the Islamic Medical Association of Malaysia (Imam) and Ikram Health have come out to state that it is the duty of Muslim doctors to facilitate the implementation of hudud.

Non-Muslims also affected

The implementation of hudud law, we have also been told by its supporters, will not apply to non-Muslims. That might be so, theoretically speaking. In fact, however, there’s no doubt that the implementation of hudud laws will also impact upon the lives of non-Muslims who comprise about 38 per cent of the population, on several grounds.

What happens if both Muslim and non-Muslims are involved in a crime, say zina? Where will such a case be heard – in the civil or the sharia court? Will hudud law or civil law apply? Or two separate courts – which might result in two different court rulings and punishments? What kind of justice is this? Wouldn’t this go against the principle of equality before the law as enshrined under Article 8 of our Constitution?

And suppose it is decided that a crime is to be heard in the sharia court and there are non-Muslim witnesses to the crime. Will non-Muslim witnesses be able to testify on behalf of a rape victim? What would be the weight of the evidence presented by a non-Muslim witness? A male one? A female one?
Recent well publicised controversies the past decade over various personal and family matters involving Muslims and non-Muslims have not given confidence to non-Muslims that their lives will not be affected by the implementation of hudud laws either.