March 29, 2015
Malaysia after Hudud: A Nation Divided
Hudud has for the past two decades largely been treated as a mere fringe topic among Malaysians, a political hot potato tossed back and forth between local parties as they canvassed for Muslim votes during elections.
But last week, when the Kelantan legislative assembly passed amendments to its Shariah Criminal Code II enactment — dubbed the hudud Bill — the controversial Islamic penal code quickly became a legitimate public concern.
Now, if PAS, the Islamist party that governs Kelantan, next succeeds at the federal level in getting more legislative amendments approved, hudud, an Islamic punishment system under Shariah law, will be implemented for the first time in a Malaysian state.
Although the law would only be confined to Kelantan, it must be noted that PAS’s manoeuvre in Kelantan has already roused the ambitions of other Islamist groups and scholars who wish to see hudud sweep the country. All eyes are also on Terengganu, which had also passed a similar but still ungazetted enactment with hudud elements in 2002.
The ball is now in Parliament’s court, but analysts and observers are already warning that should hudud get implemented in other states, the Malaysia we know today will head towards an irreparable divide.
A legal system divided
Malaysia has always practised a dual-track legal system, although for the Muslims, legal disputes on family matters like marriage, divorce and inheritance, and the precepts of Islam, are dealt with under the Shariah law.
The implementation of hudud, however, will see the Shariah courts encroaching on offences already covered in the civil justice system, specifically the Penal Code. These include crimes like sariqah (theft) and hirabah (robbery). Hudud’s companion qisas, meanwhile will legislate the offence of murder, which is also already covered by civil law.
According to amendments in Kelantan’s hudud Bill, however, once enforced, hudud will only apply to Muslims. For example, a Muslim guilty of theft in Kelantan can be punished by amputation of his limbs, under Section 7 of the state’s hudud law.
But in the Penal Code, the same crime committed by a non-Muslim prescribes a maximum seven-year jail term or fine or both, according to Section 379 of the legislation.
The prospect of subjecting criminals to two different punishments for the same crime by virtue of their religious backgrounds, however, could prove complicated in a diverse nation like Malaysia, analysts said.
“How do you enforce this in a plural society? Of course it would lead to injustice between Muslims and non-Muslims, especially if the crime involves perpetrators of different religions,” political analyst Nik Abdul Aziz Nik Hassan said in a recent phone interview.
“I think this contradicts the principles of Islam, where there exists variations and injustice in the punishment for the same crime.” At the crux of the argument is the Federal Constitution, the supreme law of the country that is the bedrock of Malaysia’s foundation.
If hudud is to be implemented, it would mean that the Federal Constitution will have to be amended to legislate against crimes already under the Penal Code, said Nizam Bashir, who is both a constitutional and Shariah lawyer.
“What seems to be missing from the conversation at this point of time is what the framers of the Constitution has envisaged as the appropriate balance of powers in a federal system of government like Malaysia. Simply put, we were always meant to have a strong central government,” Nizam told Malay Mail Online.
“Having said that, this does not mean that states have no power or the monarchs’ role are trivialised in some way in the Constitution. It is far from that.
“But it is very clear that the central government was always meant to take centre stage on matters like crime, and one can see why as it would promote public order,” the lawyer added.
The same sentiment was expressed by Malaysian Bar President Steven Thiru, who in a statement on March 20, said implementing hudud laws would fundamentally alter Malaysia’s secular Federal Constitution in ways never intended.
“If hudud were brought into the criminal justice system, it would result in the importation of Islamic penal law into a secular system. This would result in a rewriting of the Federal Constitution,” Steven warned.
Lawyers have also claimed that the implementation of hudud in Kelantan will lead to more constitutional challenges being filed in court against the Islamic penal code.Constitutional lawyer New Sin Yew pointed out that the civil courts were forced to intervene in previous cases of Shariah courts overstepping their jurisdiction, such as M. Indira Gandhi’s child custody dispute with her ex-husband who is a Muslim convert.
“Certain aspects of the state enactment like sariqah or hirabah will be challenged in the civil courts because only the civil courts have the power to decide on constitutional issues,” New told Malay Mail Online, referring to the hudud Bill.
“And certain punishments like the death penalty and amputation will be challenged for violating federal law,” he added, noting that the Shariah Courts (Criminal Jurisdiction) Act 1965 limits the punishments Islamic courts can impose to three years’ jail, RM5,000 fines or six strokes of whipping.
These challenges are bound to widen the chasm between the two legal systems, especially with minister in charge of religious affairs Datuk Seri Jamil Khir Baharom alleging last year of a “new wave” of assault on Islam here, and accusing rights groups of colluding with enemies of Islam to put its religious institutions on trial in a secular court.
A society divided
The discrimination in punishment among Muslims and non-Muslims will also lead to bigger problems in society as Malaysians would be treated differently in the eyes of the law, Nik Abdul Aziz suggested.
Already, clear divisions have appeared between those in support of Kelantan’s hudud and those who do not, as demonstrated in the recent case of BFM presenter Aisyah Tajuddin.
The young Muslim journalist earned heavy criticism over a satirical video produced by the popular business radio station where she was seen criticising the PAS government’s bid to introduce the law in Kelantan.
“This phenomenon will bring about clashes, discontent, and other problems … When the public is not being managed fairly, it will bring towards a discriminatory pattern,” warned the analyst, who is also a retired former head of Dakwah Studies Department in Universiti Kebangsaan Malaysia.
“Islam emphasises fairness. Under the roof of fairness, only then can you guarantee economic and social stability.”
Meanwhile, the dismissal of women’s role in hudud also has women rights group Sister in Islam (SIS) worried over the treatment of women in the future, especially Muslim women. SIS’s Executive Director Ratna Osman pointed to Section 41 of Kelantan’s hudud Bill, which specifies that only an adolescent and fair male Muslim can stand as a witness in the cases of zina (illicit sex) and liwat (sodomy).
“This disqualified non-Muslims overall and Muslim women, and this contradicts with equality that is promised under Article 8 of the Constitution, that guarantees equality for all regardless of race and gender,” Ratna told Malay Mail Online.
“The fact that women are disqualified as witnesses in the code, is against the practise of Islamic laws on evidence,” she added, citing several hadith—collections of Prophet Muhammad’s sayings and deeds—where women’s testimonies were accepted in criminal cases.
She also took issue with the provisions in Kelantan’s bill governing qazaf (false accusation of zina), which puts the burden of proof on women in cases of rape, and the li’an provision, which allows a husband to accuse his wife of adultery under a sacred oath.
“You will find because of this gender inequality, a lot of cases, in Iran particularly, where husbands are always using li’an as a means to put their wives in jail. It is an easy way out of marriage,” Ratna claimed.
She also pointed to how in other countries like Pakistan, it is always the women who are convicted of zina while their male partners escape prosecution.Apart from that, Ratna also noted the difficulty in criticising the implementation of hudud after Kelantan passed its hudud Bill.
The space of discourse, even among Muslims, is rapidly shrinking with the authorities now warning laymen against discussing hudud and religion in general, as the voice of discontent continues to grow unfettered online.
Against their critics, PAS has so far resorted to labels from “immorals” and “liars”, which Kelantan Mentri Besar Datuk Ahmad Yaakob uttered when tabling the bill, to “parrots” and “unforgivable ignorants” in PAS president Datuk Seri Abdul Hadi Awang’s open letter a week after.
A country divided
In its video, BFM and Aisyah had asked how exactly hudud would fill the rice bowls of Kelantan folks, especially as the state remains one of the poorest in the country. The question has still remained unanswered, but critics told Malay Mail Online that the trickle down effect of hudud’s implementation in plural Malaysia will inevitably impact even bread and butter issues.
“Why must we rush in hudud, when the priority should be on social justice, eradicating poverty, access to health services, urban cleanliness? There are a lot of things in Islam we can implement,” Nik Abdul Aziz suggested.
“This hudud punishments will lead to bigger implications. If there is a huge case of theft, wouldn’t you have one race with fewer hands than the others? That is why we have to think this out thoroughly.”
There is already global fear that Malaysia risks losing its identity as a model of religious moderation and multiracialism if hudud goes ahead, as expressed by an influential group of retired Malay senior civil servants dubbed G25 on March 25.
Prime Minister Datuk Seri Najib Razak invariably touts Malaysia’s reputation to the international community and investors as a so-called moderate Muslim country, especially in his address to the United Nations as recent as September last year. But this image has continued to take a beating with recent actions taken by religious authorities, especially in the case of the use of the word “Allah” by non-Muslims.
Having hudud nationwide might be the nail on the coffin for his campaign, according to some. “If hudud were ever to see the light of day in Malaysia we can be sure that there will be a massive outflow of investment, wealth and people from Malaysia,” tycoon and philanthropist Koon Yew Yin wrote in his blog on March 22.
“It is not only the locals who will leave. The international community—including foreign investors—has been more loud and vociferous in expressing concern about the growing Islamisation in the country.”
“Adoption by Parliament — even if a two-thirds majority is not obtained — will be the beginning of the end for moderate and inclusive Islam in the country. Is the Middle East model of fundamentalist Islam which has brought destruction and disaster the model that Malaysian Muslims want to follow? I do not think so,” he added.
On March 19, the Kelantan state assembly approved the Shariah Criminal Code (II) (1993) 2015 Enactment with 31 votes from PAS lawmakers supported by 12 from UMNO.
PAS now plans to put forward two private members’ bills in Parliament to enable Kelantan to enforce hudud ― one will seek approval for the state to legislate punishment for crimes under the Penal Code.
The other seeks to amend the Shariah Courts (Criminal) Jurisdiction Act 1965 to enable Islamic courts to mete out punishments like the death penalty for apostasy and amputation of limbs for theft. PAS has said it only needs a simple majority in Parliament, or 112 MPs in the Dewan Rakyat, to amend the Shariah Courts (Criminal) Jurisdiction Act.