Hudud and its implications on non-Muslims in Malaysia

I am sure many of us followed the forum held by Institute of Strategic Analysis and Policy Research (Insap) yesterday. The proposed discussion was clearly on Hudud and its implications on non-Muslims, but many speakers went off tangent to discuss many irrelevant points, though educational and solid, but failed to relate to the interest of non-Muslims.

It was submitted that the real meaning of Hudud is “boundaries” and to step out of these boundaries means to commit a crime prohibited by that boundaries. We already have these boundaries in our society and we accept those boundaries to maintain everyday peaceful living and social cohesion. If that is the case, why is there a problem in implementing Hudud?

In the context of the proposed Hudud Enactment, the offences are strictly focusing on theft (sariqa), highway robbery (qat’ al-tariq), illegal sexual intercourse (zina), false accusation of zina (qadhf), drinking alcohol (shurb al-khamr), apostasy (irtidd or ridda), including blasphemy.

We all agree that to embrace Islam is to accept Hudud.

We all agree that implementation of Hudud is unconstitutional as it is inconsistent to the federal law of Penal Code and also ultra vires because the State does not have power to trespass the area of lawmaking on criminal punishment.

We all agree that the nature of Hudud punishment is outdated and inhumane.

We all agree that the evidential rule to prove an offence under Hudud is ridiculously unjust.

We all agree that Hudud does not fit right into our system of society today.

But how do all the elucidation above gels with the rights of non-Muslims?

In his opening speech, Datuk Seri Dr. Chua Soi Lek mention briefly on how Hudud can affect non-Muslims in socio economic point of view. I do not contest his points, however, there is no direct connection to show that non-Muslims’ rights will be trespassed. And most importantly, it is based on assumptions. We assume that Hudud will lower the sales of alcohol, when a Muslim (even without Hudud been implemented) cannot consume alcohol. One cannot prove pre-hand that by introducing Hudud, the business for gambling and alcohol will drop tremendously, hence it will lower income taxes. Yes, there is a relation to that but these assumptions are too farfetched.

What I would like to submit here are some immediate threats to non-Muslims’ rights, if the Hudud is being implemented.

Under the many elements of crime that has to be proven for the offence of theft, is that the property stolen must be of value. The word “value” must be consistent with the teaching of Islam. In other words, property such as alcohol and pork has zero value in the Islamic context ( The Honourable Justice Keiran A Cullinane AM, Some Aspects of Islamic Law (QSC) [2007] Qld  School 42).

In a scenario where a Muslim steals a million dollar stock of alcohol from a bar, his case would be struck out because the stolen item is of no value under Islam. Of course, one can argue that he can be prosecuted under the civil jurisdiction, but then the doctrine of double jeopardy does not allow an accused to be tried twice for an offence resulting from the same facts.

The meaning of “value” can adopt very wide interpretation. A prayer statue that is made out of pure gold can be of no value from the Islamic perspective too. Because of this requirement, Hudud does not guarantee that our properties are safe.

For most of the offences in Hudud, proof of guilt must be furnished by 2 to 4 witnesses, depending on the crime. In order for one to be called as witness, only free and trustworthy adult Muslim men have the right to testify. The selection of witness deprives non-Muslim from testifying in court. If a friend who had been victimised in an act of crime, having witnessed by his or her non-Muslims friends, they cannot bring justice to the victim simply because they are not eligible. Because we are living in a multiracial society, we must help our fellow neighbours and there should not be any barrier to stop us from such duties.

In the case where a person changes his or her faith, he or she is liable for Hudud punishment for apostasy. In our multiracial society, more often than not, a non-Muslim marries a Muslim and later converts to Islam because of the spouse’s faith. Years after, when the marriage ends with divorce or death of the spouse, the converted person may face problem renouncing the Islamic faith as he or she will be faced with deathnpenalty. Existing cases illustrate that our Syariah court treats this problem strictly, and in most cases (almost close to none), applicant have not been successful in changing their religion on legal papers. When it is a civil suit, the applicant only suffers psychological loss and having his or her religious rights restricted. Criminalising  freedom of religion has a strong impact on the sanctity’s of human lives.

These are the very few instances that I can draw. I am sure, if you go into each element of the Hudud offences in detailed, there will be a certain extent that non-Muslims’ rights would be infringed as a result of its implementation.