Hudud and Its Wider Ramifications

Originally posted on the author’s facebook page and reproduced at his open invitation.

Almost all of those who wish to implement hudud do not understand why non-Muslims do not want hudud to be implemented. Their usual question is:

“Why are you bothered? You are a non-Muslim. Hudud will not affect you.”

In case of any Malay who is against the implementation of hudud, like me for example, the usual rhetoric is:

“Why are you against hudud? Are you Muslim? May Allah guide you.” (this is a watered down and polite version. The impolite gibberish is a tired one and not worth repeating).

Okay. Let’s just assume that hudud does not in any way affect non-Muslims.

What these people fail to understand is that the implementation of hudud is not about introducing a new set of criminal law and the administration of criminal justice per se.

It is, more importantly, about the changing of societal values, culture and the way we live our life.

We are all Malaysians. And for the past 57 years or so, we have lived under a Constitution and a set of laws that, though imperfect and leave rooms for arguments and subject to much disputations, we have all grown to be accustomed to.

When people commit theft, we know and we are used to the thought that they would be arrested and charged in Court and sentenced to imprisonment. And off they go. And now we have to get used to seeing thieves without hands walking on the street looking for a job.

When a woman is pregnant without being married, we are used to saying “well, that’s her own private business.” And now suddenly we have to get used to seeing her being stoned to death or howsoever “painlessly put to death” with or without the help of doctors.

Now we are used NOT to judge – well at least, I don’t – my friend and wonder whether he is an apostate. And with the hudud law, we all have to get used to the idea of some authorities inquiring somebody on whether he had left Islam or not – some sort of a Spanish Inquisition in 2014, the only difference being now it is done by Muslims and on Muslims who are perceived to be not Muslim enough.

Laws are not just a machination for order. Laws at the end of the day shape a society, its culture, its outlook and its way of life.

The implementation of hudud will inevitably change this society of ours. It will change this country of ours.

Just look around us nowadays.

When the great Tun DrM decided to pull his Islamic card – in what he believed was a poker game with PAS – in the early 80s, little did he realise that he was creating a societal anomaly which would soon go out of control.

He should not have fought PAS at its own game using its own rules. How foolish was that? If we Malaysians had an opportunity to play a game with the Americans, surely we do not choose to play a game of American Football with them. We would be wise to play sepak takraw against them.

And so he chose to fight PAS by out-Islamising PAS. He created a Syariah Court with parallel jurisdiction as the Civil High Courts. Islamic institutions of this and that, as well as Islamic banking system (which, frankly, to my mind, isn’t really Islamic at all) followed. Then we have the ubiquitous “halal” certificates, which initially was a very good initiative, but later went awry.

What followed was an education system, schools, colleges, universities, banking system, commercial and industrial activities which masked themselves as Islam in order to attract nothing more than a superficial (and commercial) connection with Muslims. The civil service became a hot-bed for Islamisation and reduced itself from a State consumer-customer service centres into an institution that is exclusive to Malay, Malayness, Muslim and Islamness.

What all these finally came to is one, namely, DIVISIVENESS.

And so now, in the year 2014, 57 years after our independence, this country’s biggest debate (if we could call it a debate in the first place) is the Allah issue and now the hudud issue.

It is disheartening.

China’s strengthening influence in the world, particularly in East Asia is getting felt every single day. Japan is waning away. The USofA is pushing the panic button. Cambodia, Vietnam and even Myanmar are fast rising as our competitors. Thailand and Indonesia have overtaken us. Elsewhere, a new wave of Arab “neo-nationalism” is taking shape. The world’s eco-system is changing, perhaps permanently. The next economic melt-down is being predicted.

At home, our education system is producing what arguably are among the WORST students in the region (as international test results show). Our health care needs improvement. Housing prices are up and up creating superficial and wholly unsupportable price bubble. Our nation is full of old people while the youth are not properly educated and marketable in the job market. Public transportation is non-existent. Our eco-system is being raped by greedy capitalists on daily basis. The rise of monopolistic enterprises over basic necessities is unchecked. Budget deficits and accrued national debts have shot off the ceiling.

And yet all we do is we bicker about who is allowed to use the word Allah. We issue directives for hotels not to place Bibles in their rooms. We finance so-called NGOs who question what non-Muslims have contributed to our country. We also have some misguided souls who trained themselves in the art of warfare just so they can die as martyrs fighting a jihad against the Syiites in Syria. In Terengganu, we have the MB declaring that the Kenyir dam is only for women.

And of course, we waste our precious time, efforts, energy and resources over hudud.

I dare say that the implementation of hudud by Kelantan will finally change this country forever.

Why must our politicians play with our children’s future and with our country’s future?

What right do they have to force an entirely new culture and values – one to which we are all unaccustomed and do not wish to be part of – on me and on many non-consenting others?

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Posted on 5 May 2014. You can follow any responses to this entry through the RSS 2.0.

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12 Responses to Hudud and Its Wider Ramifications

  1. Hakimi Abdul Jabar

    The Syariah goes against the secular structure of the Malaysian Federal Constitution, which does not envisage a theocratic Islamic state, or a parallel criminal justice system where Muslims and non-Muslims are subjected to unequal treatment before the law.

    In Che Omar Bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, the then Supreme Court held that laws in Malaysia do not have to conform to Islamic principles, and confirmed that Malaysia is a secular state. Thus, if hudud were brought into the criminal justice system, it would result in the importation of Islamic penal law into a secular system. This would result in a rewriting of the Federal Constitution.

    Hudud is also inconsistent with these provisions of the Federal Constitution:

    (1) Article 5 clause(1) of the Federal Constitution confers to all citizens the right to life or personal liberty, which cannot be deprived “save in accordance with law”. The word “law”, as defined in Article 160 clause (2) of the Federal Constitution, does not expressly provide for, or mention Syariah as part of the definition of law. The Syariah was clearly omitted from the definition;

    (2) Article 7 clause (2) of the Federal Constitution protects against repeated trials of accused persons in criminal offences. A Muslim person, who is tried and convicted for an offence under the Penal Code, may then be exposed to a second trial for the same offence and punished under hudud laws. This would be in breach of Art.7 cl.(2); and

    (3) Art.8 cl.(1) of the Federal Constitution guarantees equality before the law and equal protection of the law. The Syariah would be applicable only to Muslims. This would offend Art.8 cl.(1), as it would result in divergent procedures, separate evidentiary rules and differing punishment being applicable to Muslims as compared to non-Muslims, in respect of criminal offences. A Muslim offender would also face heavier punishment under hudud laws for the same offence, compared to a non-Muslim offender who is not subject to hudud laws. Further, the hudud laws entrench, and result in, injustice and discrimination against women and this would be contrary to Art.8 cl.(2).

    The Federal Court in the case of Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 forcefully stated that :

    "Further, it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric.

    "Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional.

    "Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution."

    As Hudud is inconsistent with the rights guaranteed by Part II which are enforceable in the courts that form part of the basic structure of the Federal Constitution, there is no doubt as to its unconstitutionality.

    http://www.malaysianbar.org.my/press_statements/p
    http://m.thesundaily.my/node/373748

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  3. Aston Paiva

    "When the great Tun DrM decided to pull his Islamic card – in what he believed was a poker game with PAS – in the early 80s, little did he realise that he was creating a societal anomaly which would soon go out of control.

    What followed was an education system, schools, colleges, universities, banking system, commercial and industrial activities which masked themselves as Islam in order to attract nothing more than a superficial (and commercial) connection with Muslims. The civil service became a hot-bed for Islamisation and reduced itself from a State consumer-customer service centres into an institution that is exclusive to Malay, Malayness, Muslim and Islamness."

    Sir, you hit the nail on the head!

    I'm reminded of an article I was reading in Professor R.H. Hickling’s book “Malaysian Law”:-

    “…as a general proposition Muslim law cannot be regarded as “the law of the land.” Islam is indeed the religion of the Federation, just as the protestant Church is the established Church of England: but in each case, the state is a secular state, and it is wise to keep religion out of law (as well as out of politics) for the two mix ill.”

  4. Guest

    Scratch the surface of the Malay culture and you find a mixture of Indian and even some Chinese cultures and all iced with today's culture.

  5. Guest

    Art someone told me Islamic law is only applicable in a perfect world. Well i say to have a perfect world you need Islamic law. The problems you memtioned above are all a result of us not folowing the teachings of Islam. Why do we keep on living in a corrupted system and continue complaining of its odvious corrupt and brush aside someone who propogate a better system just because we are too busy cleaning up the mess we

    • Kangkung

      Great article Art!

    • mohdchennaveen

      right, perfect world eh? THAT must explain why countries such as sudan, somalia, pakistan and many others are the beacon that all great nations are envious of them right! Or if you wanna look closer to home, aceh is just a land of greatness dont you think? I can see it now, a retired couple want to get away to a perfect paradise- i know! ACEH! ur a funny guy "guest"

  6. Pepper Lim

    Nice!

  7. Ellese

    The argument of social value culture and heritage is selective and flawed. Art is arguing that he is objecting hudud as it is against our social values culture and tradition. But when Muslims want to defend the social values culture and heritage which have been practiced for hundred of years or protected in the constitution, it is met with derision. A case in point is the Allah issue. Where we have practiced for hundred of years that Allah has been used exclusively here and acknowledged by Muslims and non Muslims alike, this social value culture and heritage are simply set aside with derision. Rather than trying to convince the Muslims why a much shorter practice by a minority is preferred to a much longer prevalent practice by a majority, this long established practiced was suddenly mocked and scorned. Everyone knows how emotional and dear this term means to Allah, yet this emotion and values are irrelevant.

    Similarly with Sunni practices. Where before and after merdeka we have always followed sunnah Wal jamaah practices, this social cohesion of the Muslims is suddenly dismissed as intolerant bigoted and extremist. They are asked to accept Shiah's value.

    There are too many examples where previous long held practices of the Malay Muslims are scorned without impunity including the call for equality which necessitates the abolishment of the Malay privileges protected by the sultan. All this is justified under various ism.

    And suddenly when Muslims want to implement hudud, oh our social values customs and culture are important and relevant. Ridiculously hypocritical and double standard.

    • art harun

      I am talking about OUR social values and culture. Meaning the Malaysian way. Not the Malay way. Not the Muslim way. Not the Chinese way. Etc.

      If you want to talk about Malay customs and cultures which have been practised by the Malays hundreds of years, you are treading on a very dangerous ground. What if the Malays now want to go back to the feudal ways? So we do away with democracy and constitutional monarch?

      The truth is nobody is impinging on Malay rights or whatever rights. They are all guaranteed under the Constitution.

      It is just that nowadays it is politically trendy and savvy to be Islam this and Islam that, although there is absolutely nothing Islam about what they are doing.

      • Ellese

        Your argument doesn't follow. The use of Allah in exclusive terms have been there predating merdeka and all Muslims and non Muslims here have used it as such. Even my non Muslims friends refer Allah to Muslims god. They even have difficulty in pronouncing it. So in any karangan ke or anthem ke or daily usage ke every one has used it as the Muslim god here. If all here practice like that since merdeka why is it not the Malaysian way. If practice in Sabah aje constitute Malaysian way?

        Also the call for equality by many now. This necessitates the abolishment in Malay constitutional rights protected by the sultan. So long as these rights exist there's never going to be equality. So isn't this equality against the Malaysian way?

        You cannot pick and select argument. It must be consistent. If you're against hudud based on social value and culture you must condemn those against equality and use of Allah to include non Muslim god. It's not the Malaysian way.

  8. bumi non malay

    That is why we need to Migrate en MASS to Sabah-Sarawak and Sack Malaya…..This is the Best way to Boycott Malaya and live to see a better Life!!