From media reports, it appears that the Islamic Party of Malaysia (PAS) is determined to table a Private Member’s Bill in the June session of the Dewan Rakyat that will seek to facilitate the implementation of hudud --- the Islamic penal code --- in Kelantan. The implementation will be based upon the Hudud Bill adopted unanimously by the Kelantan State Legislative Assembly in November 1993.
I shall attempt to appraise the wisdom of doing this from three closely inter-related perspectives --- the concept of hudud in general and as enunciated in the Bill; the practice of hudud in other countries; and the local context in which hudud would be implemented.
The Kelantan Hudud Bill has been subjected to a comprehensive analysis in Muhammad Hashim Kamali’s Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan (Kuala Lumpur: Institut Kajian Dasar, 1995). Kamali, one of the world’s leading Islamic jurists, reveals in detail the weaknesses of the Bill, including those pertaining to its categorisation of hudud offences and how it contradicts the Quranic prescription on punishments and why it conflicts with the Malaysian Constitution and the Penal Code. All members of Parliament, from the government and the opposition, Muslims and non-Muslims, should digest the contents of the book before debating the PAS sponsored Bill.
They will realise that the PAS approach is focussed essentially upon modes of punishment and not upon the fundamental principle of justice which is the overriding concern of the Quran. When justice is one’s leitmotif one would first strive to ensure that the social ethos and the power structure conduce towards equity and fairness rather than preoccupy oneself with detailed descriptions of how different forms of punishment would be meted out. Besides, the concept of hudud --- or boundaries --- in the Quran has a much wider and deeper meaning and is not confined to its penal aspects. It is also employed in relation to fasting, family laws and inheritance and indeed embodies all of God’s teachings and guidelines. By over-emphasising punishment, PAS has also side-lined provisions on repentance and reformation which are crucial to all those instances in the Quran where punitive measures are mentioned in the context of specific offences.
It is not just the failure to appreciate the spirit of compassion and justice that accompanies legal provisions in the Quran that renders the PAS move to introduce hudud problematic. The party and others who subscribe to a similar view have not examined the realities surrounding the implementation of hudud. Most Muslim majority states do not provide for hudud. The most populous Muslim nation on earth, Indonesia, has not incorporated such a provision into its legal system though one of its smaller provinces, Acheh, has introduced elements of the Islamic penal code while retaining civil law in other areas. The change is drawing more and more criticism from within Achenese society itself. Turkey, one of the more prominent Muslim states today, with a leadership rooted in an Islamic movement, has stayed away from hudud laws. Arab states such as Egypt, Jordan, Lebanon and Syria, among others, have not included hudud in their criminal justice systems. In some instances, their constitutions proclaim a general commitment to Sharia as “a way of life.”
Those countries which have sought to enforce hudud such as Afghanistan, Northern Nigeria, Pakistan, Saudi Arabia, Somalia and Sudan do not seem to have succeeded in reducing the very crimes that the law is meant for. In some of them, murder and robbery are still as rife as ever. Even if street-level theft has been kept in check in one or two cases, there is ample evidence of massive looting of the nation’s wealth by the elite for the elite. And yet the hands of these thieves are not cut off! It merely reinforces the point that it is not the mode of punishment that ensures justice but the ability of society to hold the powerful accountable.
If accountability and justice are still lacking in hudud-based societies, their parlous situation is further exacerbated by the plight of women and non-Muslims. In almost every one of the states that has embraced hudud laws, women have been marginalised both in their private sphere and in the public arena. In those countries where there is a non-Muslim minority, their space for expression and action often shrinks, in the wake of hudud enforcement.
The local Context.
This brings us to the situation in Malaysia. Since it is Kelantan that wants to implement hudud, it is pertinent to ask: how would the punishments prescribed in the hudud laws help to reduce various crimes in the state? In Kelantan, as in other states in Malaysia, a number of robberies and murders appear to be related to drug abuse. Unless this underlying cause is eliminated, it is unlikely that the crime rate will be reduced even if the modes of punishment are brought in line with hudud rules.
There is also another problem that Kelantan will have to address. Though its non-Muslim population is small, at about 5 percent, the state’s Buddhists, Hindus and Christians have the right to continue to be charged under the existing law which means that the state will have two sets of criminal legislation. As argued by some others, a Muslim and a non-Muslim charged for the same crime will have to be tried under two different jurisdictions and meted out two different sentences. One could be more severe than the other. Would that be just? Would that be morally right?
Equally serious, what would be the impact of this bizarre arrangement upon relations between Muslims and people of other faiths? Wouldn’t it lead to greater polarization at a time when we are already struggling with increasing communal polarization?
In the ultimate analysis, the PAS bid to implement hudud in Kelantan is not just about its understanding of hudud. It is sadly about how the vast majority of Muslims in this country understand hudud. It is an understanding shaped largely by the interpretation of the ulama --- an interpretation that is literal and static.
This is why modes of punishment including those that have no basis in the Quran are perceived as sacrosanct. Malaysian Muslims forget that it is the underlying moral principle of right and wrong that is fundamental --- a principle which regards murder and robbery and adultery as eternally wrong. In order to do justice to the victims of these and other wrongdoings, every religion and every epoch has formulated modes of punishment which are often shaped by the prevailing social milieu.
If one fails to distinguish the contextual from the eternal, the ephemeral from the perennial, the universal message of religion will be lost. Great Muslim thinkers have cautioned Muslims about this through the ages. The illustrious eighteenth century theologian Shah Waliullah (1703-1762) for instance emphasised that “every age must seek its own interpretation of the Quran and the traditions.” He believed that, “One of the major causes of Muslim decay was rigid conformity to interpretations made in other ages.”
Muhammad Iqbal (1877-1938), the distinguished twentieth century poet-philosopher, was also of the view that in approaching the Sharia, “each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems in accordance with the level of its consciousness and the demands of the time.” Another reformer of repute, Ali Shariati (1933-1977), was equally critical of “traditional, formalistic Islam” and sought to liberate the religion from the grip of those ulama “who had imprisoned Islam by monopolising it.”
Here in Malaysia, Syed Hussein Alatas (1928-2007) had for many decades, through works such as Kita dengan Islam argued eloquently for an understanding of Islam that goes beyond the literal and connects with the essence of the faith. In an essay entitled, Al-Quran: Nilai dan Peraturan in Dewan Budaya (February and March 1980), I has also explored further the distinction between contextual rules and the eternal message. It explains why when PAS began pushing for hudud soon after it came to power in Kelantan for a second time in 1990, I raised the question, Hudud: Central to Islam? in a 1992 article which became a chapter in my Rights, Religion and Reform ( London: RoutledgeCurzon, 2002)
Now that the issue of hudud has re-surfaced with even more serious implications for the nation as a whole, we should remind ourselves of the magnitude of the challenge that faces us. In Kamali’s words, nineteen years ago, “We either choose to retain the eternal message of Islam, uphold its civilizational ideals, and invest our energy in the task of reconstructing a society in that image or lower our sights only to see the concrete rules and specific details. This latter alternative … attaches higher priority to details and make them the focus of attention at the expense of the broader and more important objectives of Islam. Islam’s commitment to moral virtue, to justice, to equality and freedom … and to the promotion of humanitarian and compassionate values are of universal and perpetual significance. Failing to understand these will inevitably lead to the misapprehension and misinterpretation of Islam and its criminal justice.”