The Hudud issue: FOR and AGAINST

Basically, you have a democratic right to dream about Hudud and to support it. And you also have a democratic right to have nightmares about Hudud and to oppose it. The problem is, both sides do not understand democracy and do not respect the democratic right of someone to support or oppose what they feel they want to support or oppose.

NO HOLDS BARRED

Raja Petra Kamarudin

Let us first argue FOR.

We are always shouting and screaming that Barisan Nasional does not respect the Federal Constitution of Malaysia. We accuse Barisan Nasional of violating the Constitution. But is it only Barisan Nasional that is guilty of this or are we also guilty of the same?

What does the Constitution say? It says that religion (meaning Islam) is a state matter and comes under the Ruler of that state. In states that do not have Rulers, then religion comes under the Agong.

That means the states have power over matters involving Islam.

Now, this is what the Constitution stipulates. And if we don’t like that or do not agree with that, tough! Then we shall have to amend the Constitution so that matters concerning religion can be brought under the control of the federal government.

However, to do that, we shall first have to control a majority in Parliament. And that means we will have to ensure that we vote in a new government that is prepared to make these amendments to the Constitution.

And if we can’t find any government that is prepared to make these amendments then we are stuck. That means that particular Article in the Constitution will stay and cannot be amended.

Okay, since religion is a state matter, this means each state decides on all matters concerning the Shariah. For example, one state might ban Muslims from drinking and punish offenders with a fine. Another state might punish offenders with a jail sentence while, yet another, may impose whipping as the punishment. Then we might see a situation where a state does not punish offenders at all and just turns a blind eye to Muslims who drink.

Ultimately, it is entirely up to that state what it wants to do with regards to the Shariah, whether it involves liquor, illicit sex, or whatever. But in situations like prostitution, rape, robbery, murder, etc., where we already have federal laws concerning such crimes, then federal laws and not state Shariah laws would apply. Federal laws override state laws even in matters concerning Islam. Only when the federal laws are ‘silent’ would the state laws apply.

The bottom line is, the state decides what it wants to do in all matters concerning Islam unless there are already federal laws to address certain issues, mostly related to crimes.

So, 20 years ago, Kelantan passed a bill in the State Assembly to enact the Shariah law of Hudud and, ten years ago, Terengganu did the same. So what is wrong with that? Isn’t that the powers of the states? Since it is legal then why are we making an issue out of it?

However, if it involves liquor, illicit sex and whatnot, the state can impose whatever punishment it wants. Only when it involves crimes already covered by federal laws will Parliament have to approve those new state laws first before they can be implemented.

And Parliament did not approve them. Parliament blocked the move by Kelantan and Terengganu and until today the Shariah law of Hudud can’t be implemented in those two states. That is also correct. That is within the powers of Parliament. And, until the majority in Parliament votes otherwise, this state of affairs will continue.

Now, assuming they do a referendum and more than half the citizens of Kelantan and Terengganu (two states where 97% of the population are Muslims) vote in favour of Hudud and, say, Parliament decides (by majority vote) to approve these laws since a referendum has been taken and more than half the citizens of those states voted in favour of these laws, is this not democracy at work?

We say we want democracy. Well, that is democracy. Why then are we still shouting and screaming?

So you see, democracy works both ways. And democracy may not necessarily always be good when we are in the minority. However, whether you like it or not, majority rules. And this is the reality we have to accept. Tough!

Now let us argue AGAINST.

The theists (in this case the Muslims) argue that the Shariah law of Hudud is God’s law. And because of that they want the Hudud laws to be implemented in Malaysia.

That is well and fine if Malaysia were a theological state. But Malaysia is not a theological state. Malaysia is a parliamentary democracy modelled after Britain’s Westminster system of government. In short, Malaysia is a Secular State with partial implementation of the Shariah -- but only in certain matters and certainly not in matters involving crime.

So, again, we have to go through the same process as what we argued above for the FOR. That means you need to get Parliament to approve these new state laws. And, to do that, you will need to control a majority in Parliament. And if that can’t be done, tough! Then nothing is going to happen.

Chances are we shall continue to see different governments at state and federal levels for a long time to come. And that would mean the federal government would continue to move in the opposite direction to the state governments. And that means the Shariah law of Hudud will continue to remain mere talk and an aspiration of certain people who are never going to see it happen.

Yes, Malaysia is a democracy. So you are free to continue talking about it and aspire to see it happen. That is your democratic right. But whether you are ever going to see it happen is another thing altogether. And it is not right for those people who grudge you talking about it and stop you from aspiring to see it happen. You have every democratic right to wish for the Shariah law of Hudud and no one should tell you to shut up.

In this situation both sides are wrong. Those who do not allow those who support Hudud to talk about it are wrong. And those who want to force Hudud down the throats of Malaysians using the argument that this is God’s law are also wrong.

Basically, you have a democratic right to dream about Hudud and to support it. And you also have a democratic right to have nightmares about Hudud and to oppose it. The problem is, both sides do not understand democracy and do not respect the democratic right of someone to support or oppose what they feel they want to support or oppose.

This is the crux to the whole matter and this is why we are seeing so much conflict amongst Malaysians with regards to this very touchy matter called Hudud.