SINCE PAS in Kelantan passed its version of hudud law in 1993, and in Terengganu in 2002, there have been endless debates on this issue, dividing Muslims, political parties and coalitions, and causing much dread and trepidation among most right-minded citizens of Malaysia about the future of the country.
The only difference between then and now is that today we find federal ministers and leaders from Umno – a party that clearly rejected the imposition of hudud punishment on Islamic, Constitutional and public interest grounds in the past – supporting the enforcement of hudud law.
And there are leaders within PAS who have publicly said that hudud should not be a priority of the party.
This resurrected debate on hudud law, yet again, is really nothing more than political gamesmanship. We all know hudud law cannot and will not be implemented in Malaysia. Crime is a federal matter. The Constitution needs to be amended with two-thirds majority support for this fundamental change to pass through. That is not about to happen.
Moreover, why should Malaysia – a multi-ethnic and multi-religious country that sells itself as leading a global movement of moderates, that is vying for a seat on the UN Security Council, that has been a member of the Human Rights Council and will likely vie for a seat again, that takes pride in its ranking as the 24th most competitive nation among 148 countries in the Global Competitiveness Report – damage all that for a law that has brought much disrepute and inflicted injustice to many Muslim communities?
Why should Malaysians support further expansion of the syariah jurisdiction in this country when the implementation of the Islamic Family laws and the Syariah Criminal Offences laws has led to much controversy and disputes, and charges of discrimination against the rights and interests of women and non-Muslims? These long-standing charges and wrangles remain unresolved to this day.
Does the political leadership really want to incur more wrath and face more contentious disputes that it has shown no will and no ability to resolve? It is obvious the Malaysian public will no longer be cowed into silence and submission when their rights are being trampled on. The hudud road ahead can only lead to more social unrest and political and economic instability.
So instead of dithering and hedging with “no, not yet”, “yes, but”, let’s summon the political courage to say no to hudud law once and for all. There are many grounds and much scholarship and experience to say no to hudud – Islamic, Constitutional, human rights principles, public interest and lived realities.
Malaysians who support hudud law should be looking at Tunisia as it tries to build what could be a model of democracy in the Arab world.
Rachid Ghanouchi, the Tunisian ideologue for many Islamists globally and leader of the al-Nahda ruling party, openly pledged his support for a secular and pluralist society, with respect for human rights and women’s rights. He promised not to dismantle Tunisia’s progressive Personal Status law that banned polygamy. The party conceded to demands that the new Constitution does not refer to syariah as a source of legislation. The state is now constitutionally mandated to take pro-active steps to achieve parity for women in politics and in the workplace.
In Morocco, also governed by an Islamist party, the amended Constitution framed equality within the comprehensive definition of human rights – political, social, civil and cultural rights. It states clearly that all forms of discrimination are prohibited, including, explicitly, gender–based discrimination.
None of the three Arab states – Tunisia, Morocco, and Egypt – that have recently passed new Constitutions ever raised the imposition of hudud law. It was a non-issue. The trajectory of reform towards a democratic constitutional framework is clear.
Certainly, Saudi Arabia is not a model for them. Neither are Pakistan, Nigeria or Sudan, where their record of hudud enforcement showed those persecuted were mostly women and the poor.
In Pakistan, public outcry of injustice and repeated calls for repeal forced the government to dilute its Hudud Ordinance through the Protection of Women Act in 2006. Research done by the National Commission on Women in Pakistan showed that 80% of the women in prison were there for offences under zina (illicit sex) laws. Another earlier research showed that over 1,000 women were in prison for zina, compared to only two men. The gross discrimination and injustice against women in the end made the law unenforceable.
And yet in Malaysia, there are those still obsessed with damnation and punishment to prove Muslim piety. How about getting obsessed with the hundreds of commands, exhortations, values and principles to do good in the Quran that we ignore or violate on a daily basis?
The command for us to be kind and compassionate at all times, the duty of a man to provide for and protect his wife and children, and the obligation of a leader to be just and fair in his rulings are just a few. These are huge Islamic obligations that so many of these men obsessed with hudud have failed to practise personally as a father, a husband or a political leader or have failed to set systems in place so that justice is done for all.
Do they really think they can win votes by stoning Muslims to death, chopping off hands and feet and sending women to prison because they cannot find the four pious Muslim men who witnessed the rape and their police report is used as evidence of zina?
Sisters in Islam has consistently been against the hudud law of Kelantan and Terengganu on several grounds:
> They discriminate against women.
> They disqualify three quarters of Malaysia’s population as witnesses – all Muslim women and all people of other faiths.
> They select the most unforgiving and most severe juristic opinion (fiqh) to be codified into law.
> They fail to look at the nass (text) in the Quran for the hudud punishment as a whole, focusing only on fixed penalties. No mention is made of repentance, reform and forgiveness provided for in the Quranic verses on the four hudud offences of theft, robbery, illicit sex and slanderous accusation.
> They add two other crimes – apostasy and shurb (consumption of alcohol) even though the punishments are not prescribed in the Quran.
> They are unconstitutional.
> They infringe international human rights standards and Malaysia’s treaty obligations by providing forms of punishment which can be regarded as “torture, or cruel, inhuman or degrading treatment”.
While the source of hudud law may be divine, there is nothing divine about the process of interpretation, codification and implementation of the law. It is a man-made law with all its inherent flaws. And it will be enforced by flawed human beings who will then proclaim that those crying out against the injustice perpetrated are all against Islam, against God, against syariah.
PAS and Umno leaders need to recognise the huge public divide, even among scholars of Islam, on the application of hudud in this modern age. There are those who believe in the immediate enforcement of hudud, as many PAS members and supporters do, and even some in Umno. Others believe it is dependent on the pre-existence of a just society so that any violation will constitute such an affront that merits severe punishment, supported by the community.
And they argue that this just society where everyone is provided for in a fair and equitable manner is impossible to achieve, thus making hudud “almost never applicable”.
Yet others still believe that the hudud punishments provided for in the Quran were specific and contextual and no longer applicable in contemporary society.
What is more important is to focus on Islam’s universal message of equality and justice, of compassion and repentance. The record of hudud laws enacted in several countries, both in substance and practice, has not served the public interest nor the cause of justice. It has, in fact, brought Islamic law into disrepute, generated fear and revulsion towards Islam and feeds into Islamophobia.
So let us not be hoodwinked into false choices. The debate is not between Islam and secularism, not between hudud law and civil law. These are false binaries created to divide us for political gain. The choice before us is between democracy and despotism, between good governance and corruption, between equality and discrimination, between social justice and inequity.
Who does not want to choose democracy, good governance, equality, and social justice? Authoritarianism, corruption, inequity and injustice happen whether the government is secular or Islamic. So let not the political puppet masters toy with our emotions and loyalties by playing the politics of race and religion and detract us from what really matters.
Let’s focus our time and energy on doing good deeds, instead of battling over doctrine. You win people over to respect your religion by being kind, compassionate, just and respectful of others. When your belief makes you intolerant, cruel, chauvinistic and belligerent, you turn people away from religion. It is as simple as that.
> Zainah Anwar is the internationally acclaimed and award-winning co-founder and former executive director of Sisters in Islam (SIS Forum) and the co-founder and director of Musawah, a global movement for equality and justice in the Muslim family. She is a former member of the Human Rights Commission of Malaysia (Suhakam). The views expressed are entirely the writer’s own.