Hudud Will Be Revolutionary And Unconstitutional

This is dedicated to the life and struggle of my dear friend, the late Karpal Singh,

Malaysia’s most courageous lawyer and most principled politician.

The hudud debate has so far been conducted in the context of Islamic law and syariah, with proponents wishing to contain it within the faith.  This is misplaced.  The debate is actually housed in the realm of the administration of justice generally, and, the enforcement of criminal law in particular.  In consequence, all the peoples resident in Malaysia, citizens and non-citizens, and Muslims and non-Muslims are profoundly affected by the debate.

WHAT IS HUDUD

The following definition of hudud is taken from a translation of Sahih Muslim, Book 17 : The Book Pertaining to Punishments Prescribed by Islam (KITAB AL-HUDUD) and serves as the basis of this article.

“The penal laws of Islam are called Hudud in the Hadith and Fiqh.  This word is the plural of Hadd……. Punishments by way of Hadd are of the following forms: death by stoning, amputation of a limb or limbs, flogging by one hundred or eighty strokes.  They are prescribed respectively for the following offences: adultery committed by married persons, theft, highway robbery, drunkenness and slander imputing unchastity to women”.

Emeritus Professor Clive Kessler wrote about its impact previously:-

“The introduction, even the mere hinted suggestion, of any proposal for the official infliction of pain on people’s bodies and souls — for outright crimes against their fellow human beings, or even for the exercise of independent intellectual and spiritual conscience — must markedly shift society away from the gentle end, and decidedly towards the crude and brutalizing end, of the ethical scale. That seems indisputable.

Any such legally mandated assault upon the citizen — any citizen or subject of the state — with its mutilation of bodies, maiming of souls, shaming and extreme humiliation of persons and its violation of personal conscience and human dignity will discredit the state, its laws, and those who uphold them. This is not a direction that a modern progressive state can take or its citizens, if they are thoughtful, condone. Those who endorse such measures must have a different agenda.” (my emphasis).

Hudud would therefore result in a totally different system of criminal law and procedure because both the principles in establishing the guilt of an accused and the punishment of a convicted person would be radically different from that which has prevailed in Malaysia for centuries.  Hudud is accordingly a radical form of punishment for a criminal offence.  Hudud is an integral part of “criminal law” because punishment is contemplated, and the life and liberty of a convicted person is at stake.

Any hudud system will not be infallible.  Mistakes occur even in a system which has the most careful prosecuting agency, experienced defence counsel and a judiciary vigilant in its protection of the rights of an accused.  Can one imagine the trauma, both of society and the individual accused (and his family) if our hudud system subsequently discovers that a person was wrongly convicted : and his limbs amputated.  The state’s mistakes in hudud punishment can thus never be rectified.

THE COMMON LAW

The Japanese occupation of Malaya between 1941 and 1945, when law was administered brutally, demonstrated the inherent fairness and justice of the common law system which had already taken shape in the Peninsula.  Lawlessness and anarchy continued after the Japanese surrender in August 1945.

The British Military Administration that temporarily governed Malaya was hugely unpopular because it could not provide law and order.  The Emergency declared in 1948 to combat the armed struggle by Chin Peng’s Malayan Communist Party suspended civil liberties and gave massive power to the Army and Police.  However, by the time Tunku Abdul Rahman became Chief Minister after the July 1955 Federal Legislative Council elections, the country was relatively at peace, law and order had been restored and Merdeka was on the horizon.

Fundamental to the system of government on Merdeka Day particularly, with respect to the third branch, the judiciary was the common law system.  In fact common law was accepted by everyone concerned (and it must be recalled that the Bar Council had presented its memorandum to the Reid Commissions in 1956), and no other system of law was even mentioned, let alone considered.  Central to the common law system is criminal law, which even prior to Merdeka had been codified in the Penal Code, the Criminal Procedure Code and other Ordinances.  Upon independence, criminal law was to continue to be administered in the ordinary courts of the law, with juries sitting to determine the guilt of their peers for serious crimes.  Thus, it is crucial to remember that the present criminal law system was freely and voluntarily chosen by the people of Malaya on Merdeka Day.

The principal reason for the universal acceptance of the common law system of criminal law, initially in Malaya in 1957 and subsequently by Singapore, North Borneo and Sarawak when Malaysia was established in 1963 is the existence of a plurality of races.  We have never been a homogenous society, like the Japanese.  Diversity of races and variety of religions have characterized Malaya for centuries, the mosaic becomes more varied for Sabah and Sarawak.  In such circumstances, it is impossible for members of one religion to persuade members of other religions, atheists and non-believers to accept a criminal law system based on one religion.  As an undisputed historical fact, hudud was never even discussed as a possible alternative system in the independence negotiations in 1957 and 1963.

In the Federal Constitution, “criminal law and procedure and the administration of justice” are matters solely for Parliament.  Likewise, creation of offences.  Accordingly, any attempt to introduce hudud, even if limited to Muslims, by any State Legislative Assembly would be unconstitutional because in “pith and substance” punishment is a matter of criminal law and procedure, coming solely within Parliament’s legislative competence.  That is why the Kelantan Syariah Criminal Code (II) Enactment of 1993 and the Trengganu Syariah Criminal Law (Hudud and Qisas) Enactment 2003 have not been implemented in Kelantan and Trengganu.

CRIMINAL LAW

Criminal law and procedure as administered in Malaysia is founded on well-established principles, such as :-

• an accused is innocent until proven guilty;
• the burden lies on the state to establish the guilt of an accused beyond reasonable doubt;
• it is better to acquit 99 “guilty” persons than to convict 1 “innocent” person; and
• a person cannot be charged twice for the same offence : double jeopardy.

Under our system, a person is not to be convicted of a crime unless he has, by voluntary conduct, brought about those elements which by statute constitute that crime.  In general, a person does not incur criminal liability unless he intended to bring about those elements which constitute the crime, the “mens rea” requirement.  All these provide safeguards to the accused.

Likewise, sentencing.  A trial judge has a wide discretion in choosing the sentence (except for mandatory death offences).  In determining the appropriate sentence for any particular offence, our courts will take into consideration the nature of the offence, the circumstances in which it was committed and the degree of preparation and planning involved.  Mitigating factors which may be considered include a guilty plea, his good character and his previous record.  Punishment must fit the crime, and must be proportionate to its gravity.  These factors have shaped and moulded criminal trials in Malaysia for decades.

Not even the strongest defender of the present system will claim that it does not suffer from imperfections, and cannot be improved by reform.  However, no one has put the case that the entire system, which has generally worked to the satisfaction of both the prosecuting state and the defence bar, must be dismantled overnight and replaced by a totally new system.  Can the new hudud system guarantee all these safeguards?

BASIC STRUCTURE

Apparently a Private Member’s Bill is to be presented to Parliament in the coming months with the intention of addressing the issue at the federal level.  Private Member’s Bills have had a dismal history in the Malaysian Parliament since 1957.  The ruling party has never allowed time in Parliament for such Bills to be deliberated.  Additionally, having regard to the whip system, they can only be passed if the majority ruling coalition will support it,.  Thus, if history is any guide, such a Bill will be doomed to fail from the outset.  But these are extraordinary days in the life of our nation, and stranger things have recently occurred.

More significantly if it is passed by Parliament, hudud will destroy the basic structure of the constitution.  It is the Federal Constitution which in 1957 established Parliament, comprising the Dewan Negara and Dewan Rakyat.  Parliament is entrusted to amend the Constitution, provided 2/3’s of the total number of members approve it in both Houses.  But Parliament as a creature of the Constitution, cannot in the guise of constitutional amendment abolish its parent, the Constitution itself.  Further, the Courts have imposed a limitation on their amending process.  Thus, Parliament cannot destroy the basic structure or architecture of the Constitution, like for instance enacting laws that substantially weakens the Conference of Rulers, the Legislatures, the Judiciary, powers of the 13 States and fundamental liberties.

A law that creates substantial inroads into fundamental liberties like “life and personal liberty” in Article 5(1), the right to “equal protection of the law” under Article 8 (1) and the “right not to be discriminated” against because of religion or gender under Article 8(2), and which would create a parallel system of hudud law for just one community among numerous communities would wholly undermine the constitutional arrangements of the nation.  Indeed, it will create 2 nations : a hudud nation for the Muslims and a common law nation for the non-Muslims.  The country will be divided, as would the coalitions on both sides of the political divide.  Likewise, a division between Peninsular Malaysia and East Malaysia.

Hudud will not only be unconstitutional, it will be revolutionary.  Hudud and ordinary criminal law cannot co-exist in one country.  Malaysia will be radically transformed overnight.  It would be the most extreme, radical step ever undertaken in our 57-year journey into nationhood.  Our very future as a nation would be called into question.  No one can therefore over-emphasis the impact hudud would create.

What has never been discussed publicly by hudud proponents is how the state is to carry out the amputation of limbs of a convicted person, and how such a person is to be rehabilitated into society after he has lost his limbs.  Would the sentence be carried out in public or in a hospital?  What kind of medical care would he be entitled to before and after the amputation?  Does the state continue to provide for him and his family for the rest of his life, after maiming him and making him unemployable?  These are profound issues of morality.  The fact that they are even in the public discourse in the 21^st century is itself a commentary on the surreal world Malaysia finds itself.

Non-Muslims who are now told that they do not have to fear because hudud is not intended for them cannot be sure that once hudud is introduced for the Muslims, calls will not then be made to extend it to non-Muslims.  The argument that Muslims and non-Muslims cannot be treated differently, particularly if they are arrested for the same crime, will then be turned on its head.  Right wing forces will then argue that it is unfair that non-Muslims are treated differently, and very rapidly hudud law will inevitably be extended to all the people in the nation, Muslims and non-Muslims, citizens and non-citizens.  Recent controversies involving mixed marriages, custody of children and the Allah issue do not give any comfort to the minority non-Muslims.

ANTI-WOMEN

In a thought-provoking article published in the Star newspaper on 4^th May 2014, Zainah Anwar, the former executive director of Sisters in Islam, pointed out the gender bias of hudud law, and that enforcement is greatest against women and the poor.  Additionally, Zainah Anwar stated that the hudud laws of Kelantan and Trengganu in the 1993 and 2003 Enactments :-

(i)   discriminate against women; and

(ii)  disqualify ¾ of Malaysian population as witnesses — all Muslim women and all people of other faiths.

HUDUD NOT UNIVERSAL IN THE MUSLIM WORLD

Islam is the official religion of at least 24 countries.  It is the religion of more than 90% of the population of Saudi Arabia, Egypt, Iraq, Iran, Pakistan and Bangladesh.  It is also the dominant faith in Indonesia and Turkey.  Yet, hudud has only been enforced in Saudi Arabia, Afghanistan, Pakistan, Somalia, Sudan and northern Nigeria.  It has just been introduced into Brunei.  None of the 7 hudud nations will pass any objective test on the rule of law, independent judiciary and providing justice for the weak and marginalized.  They are among the worst offenders in the globe for human rights violations.  They are not models for good and accountable governance.  Apart from Pakistan and Afghanistan, they do not even pretend to have general elections.  If Malaysia is going to be the 8^th nation to impose hudud, it will join the ranks of the globe’s worst nations.  Incidentally, are there any precedents given by the courts in these 6 countries as to how hudud would be implemented so as to serve as guides for our courts?

Human rights advocates have condemned Brunei’s hudud as constituting torture and cruel punishment prohibited by the Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights, 1966 and the UN Convention Against Torture,  1984. Malaysia will similarly be in the dock if we accept hudud.  Incidentally, the Sultan of Brunei has exempted himself and his family from hudud.

BREACH OF FAITH

If Parliament enacts a Hudud law it will represent a monumental breach of faith in multi-ethnic, multi-religious Malaysia.  Likewise, the Members of Parliament who vote for the measure.  None of them were elected in GE13 with a mandate to radically change the law of the nation.  It would also constitute a major step in the slippery slide into theocratic authoritarianism, inspired by religious bigots : indeed a journey into a frightening unknown, unchartered void.