Implications of the Hudud Bill - Why Should You be Concerned?

Description: July 2002
        Author: Research Commission

The Terengganu State Legislative Assembly's approval of the Syariah Offences (Hudud and Qisas) Bill, or the Hudud Bill, on July 8 has given rise to grave apprehensions across-the-board and within the non-Muslim community in particular. The Bill prescribes Islamic punishments for specific criminal acts and joins the earlier Syariah Criminal Code (II) Bill 1993 enacted by the Kelantan State Government.

A great deal has been said and written, both in favour and against, the two PAS-sponsored Hudud Bills since they were introduced. These originate from different worldviews or perceptions of reality and it is therefore difficult, if not impossible, to achieve any degree of real compromise. This is especially true when one party considers it a God-given duty to impose the law.

While the religious motivation behind the Bills is rather clear, opposition typically comes from different quarters; the arguments made tend to be multi-faceted, overlapping and, quite often, also confusing. It is, however, imperative to be clear and consistent in answering the question: "Why do you oppose the hudud law?" Before addressing this, it is important to note the law's main features.

The Hudud Bill has several parts:

Penalties - Much of the focus on the Hudud Bill centres on the nature of the punishments. There are six punishable offences: theft, highway robbery, unlawful carnal intercourse, false accusations of unlawful carnal intercourse, consumption of alcohol and any act done or word uttered by a Muslim against Islamic beliefs (irtidad), including seeking to renounce the Islamic faith. For example, the sentence for theft is the amputation of body parts; for highway robbery, it's death and, where murder is involved, crucifixion. Zina or sexual relations outside of marriage leads to death by stoning when married persons are involved or one hundred lashes of the whip, and one year's imprisonment in the case of unmarried persons. False accusations of zina and alcohol consumption can attract up to 80 lashes of the whip, while the penalty for irtidad is death or imprisonment.

Qisa or "just retaliation" contains provisions to cover acts that lead to death or loss of use of body parts. The penalties include death, irsy or payments to the victim or the victim's family members, and "similar bodily injury as that which he has inflicted upon his victim." The qiso thus relate to "an-eye-for-an-eye" punishments.

Other parts of the Bill cover the enforcement of the punishments, general provisions and court proceedings.

It is essential to be able to effectively articulate concerns about the hudud legislation.

Highlighted below are seven arguments proposed:

1. The fact that two out of Malaysia' s 13 state governments have, by exploiting provisions in the Federal Constitution, chosen to adopt different legislation from the rest of the country carries wide repercussions for the nature and political unity of the Malaysian state. Introducing legislation in areas where federal laws already exist (namely the Federal Penal Code and Syariah Courts (Criminal Jurisdiction) Act, 1965 (Amended 1984)] directly challenges the role of Parliament and the system of parliamentary democracy.

2. The Bill further widens the divide between Muslims and non-Muslims by introducing two sets of criminal punishments. Apart from leading to possible unfair and illogical situations, it also has negative implications for efforts at fostering social unity and cohesion, which is facilitated by policies, rules and practices that, as far as possible, are designed and applied irrespective of race, religion, gender and social status. By being based on religion, the Hudud Bill clearly contravenes this principle.

3. The argument that the Hudud Bill affects Muslims and should therefore not be opposed by non-Muslims should not detract from the fact that PAS' ultimate objective is to make it applicable to everyone. PAS' leadership, in countering objections to there being two standards, explicitly said this prior to the tabling of the Kelantan Bill in 1992 and after the 2002 Terengganu Bill.

4. While there is no question that the Federal Constitution allows states to enact legislation for Muslims, the act of giving non-Muslims the choice of being tried under the Hudud Bill is considered by senior jurists to be constitutionally outside the state's powers. At the same time, provisions within the Bill allow any person (Muslim or non-Muslim) who "abets or assists or conspires or plots for the commission of ... offence(s)" to be punished with "imprisonment as ta 'zir punishment for a term not exceeding ten years."

5. Non-Muslims are entitled to argue that any legal system, Islamic or otherwise, that prescribes amputation, death by stoning and crucifixion is excessive, non-proportional and does not accord with modern and international concepts of justice and human rights. PAS has often contended that this objection is based largely on Western origin, but the party has ignored the fact that there is a large body of Islamic theological thought who also holds that the hudud punishments are inapplicable in their original form.

6. All citizens are entitled to argue that, however socially undesirable they may be, matters of conscience and morality such as sexual conduct, alcohol consumption and religious conversion, should not be subject to criminal sanctions, especially those that involve as severe a penalty as death or whipping.

7. There are doubts over the methods of implementation of the hudud law, especially in cases of rape where the burden of proof is placed on the victim rather than the state. Thus, a rape victim who is unable to provide incontrovertible evidence of the rape act can be held guilty of false accusation and may be liable to be whipped.

PAS has unambiguously stated that it will introduce the Hudud Bill in every state that it wins the right to form the government. At the same time, it has challenged the Federal Government to amend the Federal Constitution, the Penal Code and the Syariah Courts Act to enable hudud punishments to be carried out.

While the Government has so far maintained its resolve not to do so, the future does not seem to be so certain. The original character of the Federal Constitution must be preserved at all cost and it is essential that Christians be prepared to act decisively in the political, social and legal arena to ensure this.

Contributed by NECF Malaysia Research Commission, July 2002  


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