Why hudud law cannot be enforced

An analysis of state and federal powers on Islam and criminal justice

COMMENT

By Shamsher Singh Thind

I once asked my students “How many states in Malaysia enforce Islamic criminal law?” Some of them had no idea what I was asking and kept quiet but others, referring to the recent development in Kelantan, enthusiastically answered “One”. I do not blame my students for their ignorance since many people in Malaysia are of the same opinion too.

Every state in Malaysia enforces Islamic criminal law, not just Kelantan. In Penang, there are at least 40 offences listed in the Syariah Criminal Offences (State of Penang) Enactment 1996. Among them are:

(a) sexual intercourse out of wedlock

(b) male person posing as a woman for immoral purposes

(c) indecent act in a public place

Although criminal law is listed in the Federal List of the Federal Constitution, a state assembly is empowered to enact Islamic criminal law by the State List.

Syariah courts are conferred with the jurisdiction to punish offences by virtue of the Syariah Courts (Criminal Jurisdiction) Act 1965, extended to Sabah and Sarawak in 1989.

Nevertheless, section 2 provides two limitations: (i) that Islamic criminal law shall only be enforceable on persons professing the religion of Islam and (ii) that such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding 3 years or with any fine exceeding MR5,000 or with whipping exceeding 6 strokes or exceeding any combination thereof.

Neither Barisan Nasional nor Pakatan Rakyat component parties have any problem with such enforceability of Islamic criminal law. However, all hell breaks loose when Kelantan, led by PAS, recently amended the Syariah Criminal Code (II) Enactment 1993.

The 1993 Enactment was a controversial piece of legislation for introducing additional punishments like amputation of limbs and death penalty by stoning!

Unlike other Islamic criminal law, the 1993 Enactment cannot be enforced even after the recent amendment: it goes against the provisions of the 1965 Act.

The State List clearly provides that although state assemblies may create offences against Islamic precepts, Syariah courts shall only be conferred with the jurisdiction to pass sentences by federal laws, like the 1965 Act.

For the same reason, Terengganu’s equally controversial Syariah Criminal Offence (Hudud and Qisas) Enactment 2002, also remains unenforceable.

Obviously, I am against death penalty by stoning in broad daylight. Crimes should be proved in accordance with modern methods of evidence, and punishments carried out behind closed doors. However, my opinion on hudud is simply irrelevant!

Hudud means offences for which the punishments are fixed by Allah as stated in the Qur’an. No Muslim worth his salt will thus oppose hudud. If any non-Muslim opposes hudud, this act may be deemed as interference into the religious practice of another.

If it was wrong for Dr Ridhuan Tee Abdullah to condemn the erection of Lord Murugan’s statue in Batu Caves, then it is also wrong for non-Muslims to tell Muslims to disregard what has been made mandatory by Allah in the Qur’an.

Since law on hudud is an integral part of the Islamic religion, it is better for non-Muslims not to make any comment. There are some Muslim scholars with a different view on hudud. Even then, it is for the Muslims to debate and sort out their religious differences.

If PAS wants to enforce the 1993 Enactment in Kelantan, then the 1965 Act has to be amended by removing the limitation and conferring extended criminal jurisdiction on Syariah courts to pass sentences like amputation of limbs and death penalty by stoning.

This can only be done in the Parliament, and not in the Kelantan state assembly.

I have a few concerns.

First, only those who profess the religion of Islam may be subjected to Islamic criminal law and not all Muslims. Yet Penang’s 2004 Enactment provides that a Muslim is not only a person who professes the religion of Islam but also any person:

(a) whose either parent at the time of his birth was a Muslim;

(b) whose upbringing was conducted on the basis that he is a Muslim;

(c) who is commonly reputed to be a Muslim;

(d) who has converted to the religion of Islam; and

(e) who is shown to have stated, in circumstances in which he was bound by law to state the truth, that he was a Muslim, whether the statement be oral or written.

In other words, a person who does not profess the religion of Islam (say, a child of a Muslim who has been brought up as a Christian all his entire life) can still be regarded as a Muslim by law. In my judgment, Islamic criminal law (hudud or otherwise) should not be applicable to him.

Second, a Muslim person who commits any crime against a non-Muslim should not be charged under Islamic criminal law but under the Penal Code or other federal laws. This is to ensure that a non-Muslim does not have to go to Syariah courts to seek justice.

Third, Article 121(1A) of the Federal Constitution must be amended so that only the High Courts shall have jurisdiction to decide whether or not a person professes the religion of Islam before he is charged in a Syariah court. This is important so that Syariah courts will remain inferior to such High Court.

It is much better for all concerned parties to work together and find ways to resolve issues than to blindly support or object any motion pertaining to the enforceability of Islamic criminal law.

Some members of the DAP are now urging the party to sever ties with PAS. Even though the 1993 Enactment has been there all along, yet the DAP had no problem in forming an alliance with PAS before the 2008 general election.

Prior to the recent development in Kelantan, DAP had never asked PAS even once to repeal the 1993 Enactment. It is not fair on PAS. If DAP was so concerned about the “no-hudud” agenda, it should not have formed an alliance with PAS until and unless PAS repeals the 1993 Enactment.

Also, some members of the MCA are condemning DAP for allowing PAS to amend the 1993 Enactment. May I remind the MCA that 12 Umno members did vote in favour. Also the Syariah Criminal Offence (Hudud and Qisas) Enactment 2002 is still very much valid in Terengganu although BN has been ruling the state for many years.

Can the MCA and other component parties in BN persuade Terengganu to repeal the 2002 Enactment? If not, then they have nothing to complain about the DAP.

*Shamsher Singh Thind is a law lecturer in a private college*