Going beyond the obvious in hudud discourse

By Wong Chin Huat
Malaysiakini

COMMENT There is perhaps no political debate more mislabelled and misleading in Malaysia than that of the so-called “hudud” law.

Hudud, an Arabic word, is the plural form of hadd (had in Malay), which means ‘limit’. It refers to fixed punishments mentioned in the Quran for certain crimes.

Section 4 of Kelantan’s Syariah Criminal Code II (1993) 2015 listed six types of crimes: sariqah (theft), hirabah (robbery), zina (adultery), qazaf (accusation of adultery without four credible witnesses), syurb (intoxication), and irtidad/riddah (apostasy).

The same is listed in Section 4 of Terengganu’s Syariah Criminal Offences (Hudud and Qisas) Enactment 2002 [Enakmen Kesalahan Jenayah Syariah (Hudud Dan Qisas) 2002].

The Brunei Syariah Penal Code Order 2013 lists two more types of crimes: zina bil-jabar (non-consensual adultery) and liwat (sodomy).

The most well-known of hudud punishments are stoning to death for adultery, and amputation for theft and robbery.

More than stoning and amputation

Strictly speaking, if it is just about hudud punishment, then we are saying, for example, the substitution of imprisonment with amputation for theft – more precisely, theft of goods worth one nisab or more.

Nisab is the amount of money equivalent to the current price of 4.45g of gold in the laws for Kelantan [Section 2] and Terengganu [Section 2], and 4.25g of gold in Brunei [Section 54].

As of 19 March 2015, this means amputation is applicable if the goods stolen is worth about RM614, slightly more than a BR1M payment.

However, the Kelantan and Terengganu enactments cover crimes beyond hudud punishments. They cover also qisas punishments, for crimes of causing death and bodily harm.

Both hudud and qisas punishments are stated in Al-Quran or Sunnah.

The difference between the two is that hudud punishments are fixed.

Section 48 of the Kelantan Code, for example, makes clear that the punishments cannot be suspended or changed.

As there are strict conditions imposed on implementing hudud and qisas punishments, when these conditions are not met, the sentence will be left to the court’s discretion.

Those are called ta’zir punishments, also covered under the Kelantan Code [Section 4].

Testimony of non-Muslim and women victims

More than religiously-informed punishments, the laws introduce their own evidence system.

For example, Section 39(2) of the Kelantan Code stipulates that all crimes under it have to be “proved by oral testimonies or by confessions made by the accused, or syahadah of witness”.

This rules out modern techniques of collecting evidence, from fingerprints to DNA findings.

Then, Section 40 stipulates that the minimum number of witness is four for adultery cases and two for all others.

While such restrictive demands are seen by many Muslims as a merit to give the accused the best benefit of doubt, it may also lead to effective impunity if criminals can easily get away with it.

The most controversial one would be Section 41 which states that a witness must be a male Muslim who has reached puberty (aqil baligh) and is ‘just’.

Subsections 41(2) and (3) further explain, “A person shall be considered as ‘just’ if he does what is required of him by Islam and avoids committing great sins and does not continuously commit lesser sins and protecting al-maruah that is a sense of honour”, and “a person shall be deemed to be just, until the contrary is proved.”

This basically means if a crime is committed against a non-Muslim, a woman, an under-aged person, or a male Muslim who has committed some great sin or has continuously committed some lesser sins, the person cannot be a witness to the very crime which has befallen him or her.

In fact, for tourists who fall under the categories listed above, they should not visit Kelantan unless they have two ‘just’ adult Muslim males to accompany them at all time.

Parallel justice system for selected crimes

What is termed as the hudud law is then a severe misrepresentation of a grand project aimed at introducing the entire parallel set of syariah criminal laws – however limited – to a small category of crimes.

The list excludes crimes like corruption, money laundering, breach of trust, and infringement of copyright. For all these crimes, civil laws will apply.

For the sake of argument, never mind non-Muslim criminals who are theoretically governed by civil laws only, let’s just look at the Muslims.

Will the civil laws seamlessly begin where the syariah laws end?

Take theft, for example. If amputation is applied on a Muslim drug addict for stealing a new bicycle worth RM1,000 under Kelantan’s Syariah Criminal Code [Sections 6 and 7], is it fair that a Muslim politician who embezzled RM1 million will not lose a limb but face a maximum jail term of 20 years and a fine of RM5 million under the Anti-Corruption Act 1997 [Section 16]?

Clearly, if we agree that the syariah law elements should be incorporated maximally into our laws, there should be a holistic review of the civil law to ensure proportionality and commensurateness of punishment to the severity of crime.

Then there is the big elephant in the room.

Section 2 of the Kelantan’s Code claims it applies to every Muslim aged 18 years or above of sound mind. However, Articles 181 and 182 of the Federal Constitution which provides for the Special Court for Rulers stand in the way.

Will the private member’s bill tabled cover amendments to Article 181 or 182 to make the Special Court for Rulers syariah-compliant too?

This is exactly why Prof Yusuf Qaradawi, an internationally acclaimed authority on syariah law, has questioned the suitability of implementation of hudud punishments: “sometimes some individuals steal millions and billions and hudud are not applied to them as they are politically empowered and rich. In the same time, hudud are applied to the weak and the poor. Here, imbalance takes place.”

Open debate needed, beyond the ‘hudud’ label

An open debate is not happening, partly because of the ‘hudud’ label.

For the proponents, the ‘hudud’ label allows them to mute detailed discussions by equating objection to syariah punishments to disobeying Islam.

Calling ‘hudud’ as “syariah criminal code” will be recognising the existence of ‘human reasoning’ elements in the implementation, and then its examination and scrutiny – even by non-Muslims – would be legitimate.

For the opponents, ‘hudud’ is figuratively equivalent to stoning and amputation, hence an easy symbol with which to dismiss, instead of engaging Muslims who are eager to live the Islamic lifestyle to the fullest.

We need to recognise the issue is not just about these controversial punishments, but really about the goal of separate full-fledged legal systems for Muslims and non-Muslims.

For that, one will need to confront the difficult questions of nationhood, citizenship, and state impartiality, and recognise that secularism is not an accepted premise in Malaysia’s official discourse of nationhood and citizenship.

And resolving the conflict over this controversial project to remake the nation-state is no longer a question of party positioning or coalition survival, but one much greater than that: the definition or redefinition of Malaysia as a nation-state.

WONG CHIN HUAT earned his PhD on the electoral system and party system in West Malaysia from the University of Essex. He is a fellow at the Penang Institute, and a resource person for electoral reform lobby, Bersih 2.0.