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Graphic: kelatekito.net

The hudud enactment is too important to be left to politicians, especially those who appear to be driven more by political expediency than by any overwhelming religious principles, says Jeyakumar Devaraj.

The Private Member’s Bill submitted by Abdul Hadi Awang, the president of Pas, appeared as the 24th item in the Dewan Rakyat Order Paper on 7 April 2015.

This Private Member’s Bill seeks to amend the Syariah Court (Criminal Jurisdiction Act) Act of 1965 by:

  • dropping the clause in the original Act that limits the maximum punishment that the Sharia Court can order. In the original Act, the maximum punishments were three years’ jail, RM5,000 fine and six lashes. No alternative maximum sentences are specified in this amendment bill.
  • inserting a new Section 2(A) which reads “In exercising the criminal jurisdiction under section 2, the Syariah Court may pass any sentence allowed by Islamic Law in respect of the offence mentioned.” (italics added)

The unaltered stem of Section 2 reads: “The Syariah Courts shall have jurisdiction over persons professing the religion of Islam and in respect of offences relating to any matter enumerated in item 1 of the State List in the Ninth Schedule of the Federal Constitution.”

Among the matters enumerated in item 1 of the State List of the Federal Constitution is: “The creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in regard to matters included in the Federal List”.

So what would happen if Hadi’s Bill is passed? (Though at this point in time that appears quite unlikely!)

The Kelantan Syariah Enactment of 1993 specifies the following as hudud offences:

Stealing
(sariqah)
[Clause 5-7]
Amputation of right hand at wrist level if certain conditions are met.
But this crime is listed in the Penal Code and therefore remains outside the jurisdiction of the Syariah court.
Robbery
(Hirabah)
Clause [8-9]
Punishment variable. If victim injured (amputation of a hand and a foot) victim killed (Death), etc
But this crime is listed in the Penal Code and therefore is outside the jurisdiction of the Syariah court.
Adultery
(Zina)
[Clause 10-11]
100 lashes if person never married plus jail for 1 year.
Death by stoning if person married. (Rejam)
This is not a crime in the Federal List. Therefore it falls under the jurisdiction of the Syariah Court, and the prescribed sentences could be carried out if Hadi’s amendment is passed.
False accusation of Zina
[Clause 12-13]
80 lashes
This is not a crime in the Federal List. Therefore it falls under the jurisdiction of the Syariah Court, and the prescribed sentences could be carried out.
Consumption of alcohol
(syurb)
[Clause 22]
40 to 80 lashes
This is not a crime in the Federal List. Therefore it falls under the jurisdiction of the Syariah Court, and the prescribed sentences could be carried out.
Apostacy*
(Irtidad)
[Clause 23]
Death penalty if person refuses to recant.
 
This is not a crime in the Federal List. Therefore it falls under the jurisdiction of the Syariah Court, and the prescribed sentences could be carried out.
 

* 23 (1) Irtidad is any act done or any word uttered by a Muslim which according to Syariah law affects or is against the “aqidah” (belief) in Islamic religion.

(2) The acts or words which affect the aqidah are those which concern the fundamental aspects of Islamic religion such as matters pertaining to Rukun Islam, Rukun Iman and matters of halal and haram.

My understanding is that, if Hadi’s Private Member’s Bill is passed – and it will only require a simple majority to do so, then four out of the six hudud offences described in the Kelantan Hudud Enactment of 1993 can be punished as specified in that enactment (as in the table above).

As it turned out, the Bill didn’t make it to a first reading as Private Members Bills are only dealt with after “completion of government matters” and that had not been completed.

But the next session of Parliament commences in six weeks. Will Pas keep harping on the fact that the ball is now at the feet of the federal government (ie Umno) and that they are stalling the further passage of the bill, thus, according to Pas, proving that they are not serious regarding the Islamic agenda? How will Umno respond to such political brinkmanship on the part of Pas?

The majority of Pas MPs in Parliament, I believe, are not keen that this Hudud Bill be brought to the floor.

Several of them feel that it should not have been brought to Parliament in the first place.

Others feel that it had to be done, but that is as far as it should be pushed for now. One Pas MP from Kelantan who is in this second group confided that he would be seriously worried if this Bill were to be passed as he felt “its implementation would be a mess”. In his opinion the Sharia courts in Kelantan have not yet developed to the stage where they can administer justice as they should.

But there are a minority of Pas MPs who feel that the hudud can be implemented right away.

The appearance of Hadi’s Bill in the Order Paper has stressed both coalitions. The Pakatan Rakyat came close to splitting, while many of the non-Muslim members of the BN are disturbed, especially those from East Malaysia.

The hudud enactment is too important to be left to politicians, especially to this bunch who, to me, appear to be driven more by political expediency than by any overwhelming religious principles.

We need sane and mature views from both Muslims and non-Muslims to help Malaysian society navigate this controversy without too much acrimony.

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Muhyiddin visits Nik Aziz

Umno figured that both PR and Pas had to be broken up for Umno to recover its electoral losses. And how better to create a rupture than by pushing for a more exclusivist political agenda, observes Francis Loh.

Muhyiddin visits Nik Aziz
Muhyiddin visits Nik Aziz

Faced with the possibility that it would suffer even more losses in the next general election, Umno began to re-strategise. Having rejected Abdullah’s reformist option, the only remaining option was to dig deeper into exclusivist ethno-religious Old Politics, some would even say to resort to reactionary fascist politics.

The party began to target the removal of PR leaders once again viz Anwar Ibrahim was once again taken to the courts, the late Karpal Singh was found guilty of sedition; Nik Nazmi Nik Ahmad was charged again under the Peaceful Assemblies Act (though the courts have since acquitted him); Teresa Kok has been charged with sedition; Sosma has been used to detain an activist, etc.

Perhaps less obvious, Umno’s new political strategy called for the breaking up of the opposition Pakatan Rakyat. More than this, it calls for breaking up of Pas too. As is well known, Pas had succeeded in attracting a younger generation of Muslim leaders, mostly professionals, who have been called ‘the Erdogans’, in reference to the Islamic prime minister of Turkey, Recep Tayyip Erdogan (until recently, considered a moderate and reformist-minded). Pas was not monolithic; it was not simply dominated by ulama-types. There were progressive Muslims in Pas who believed in New Politics and looked far beyond hudud.

In the run-up to the GE13, these Erdogans in Pas had pushed for the realisation of the Islamic welfare state (rather than the Islamic state per se as desired by the more conservative ulama in the party’s Dewan Ulama). The Pakatan Rakyat’s joint programme Buku Jingga had no mention of an Islamic state, nor of hudud. Apart from calling for greater justice, freedom, equality for all, the joint programme called for the promotion of Islamic values in various walks of live, a position that was acceptable because Islamic values – like ushering in a just government, caring for the poor and needy, justice, fighting corruption including in high places and compassion for all – are all universal values that people of other faiths also share.

In fact, egged on from within by the Erdogans and from without by their PR partners, party leaders had taken the public stance that non-Muslims could use the kalimah Allah provided they did not misuse and abuse the term.

Put another way, both the PR, and Pas itself, had to be broken up in order for Umno to recover its electoral losses. And how else to break these two than by pushing for a more exclusivist political agenda based on Ketuanan Melayu on the one hand, and for a more Islamic state on the other!

Indeed, this was already part of Umno’s strategy in GE13 but perhaps, not so evident because Umno was also trying to proclaim Malaysia as a moderate country to the global community and as 1Malaysia to the non-Malays within Malaysia. Now that the elections are over, the more liberal wing within Umno has allowed the more reactionary wing to set aside all pretences of being moderate and to sideline attempts at creating a more inclusive 1Malaysia nation.

It was in this regard that Datuk Seri Jamil Khir Baharom, the minister in the prime minister’s department, announced on 8 November 2013 that the attorney general’s chambers had given the green light to amend the existing ‘356’ maximum penalty under the Akta Mahkamah Syariah (Bidang Kuasa Jenayah) (Pindaan) 1984, to enhance the punishment for crimes against Islam. Under existing provisions, the hukum was limited to three years imprisonment, a RM5,000 fine and/or six strokes of the cane (Utusan Malaysia, 8 November 2013).

Subsequently, Tan Sri Annuar Musa, the member of parliament for Kerteh, and former Umno Kelantan chief, declared that he would campaign for his Umno colleagues to support Pas if it introduces a bill in Parliament to implement hudud law in Kelantan.

In response, Pas deputy president Mohd Sabu warned his Pas colleagues not to be persuaded by Umno’s baiting and to continue working with its PR partners, for Pas biggest victories had come as a result of co-operation among the Opposition (Malaysiakini, 21 Nov 2013).

More recently, deputy prime minister Tan Sri Muhyiddin Yassin visited Datuk Nik Aziz Nik Mat, the Mursyidil Am Pas (or spiritual leader of Pas) and proposed the setting up of a special technical committee between the federal (Umno) and state authorities to discuss in depth the implementation of hudud laws. Yadim (Yayasan Dakwah Islamiah Malaysia) chief Datuk Dr Asyraf Wajdi Dusuki, also a member of Umno’s supreme council, also visited Nik Aziz. The Dewan Ulama Pas Kelantan welcomed these visits and supported Muhyiddin’s call to ‘duduk semeja’ over the issue.

More than that, Perkasa, which has received funds from Umno, and other so-called Islamic groups like Martabat Jalinan Muhibbah Malaysia (MJMM) have been goading Pas on in this endeavour. Perkasa president Ibrahim Ali and secretary-general Syed Hassan Syed Ali, for instance, have challenged Pas to stop its sandiwara (play acting), to push for hudud seriously and to break with its PR partners who reject hudud laws (Utusan Malaysia 9, 12 and 29 April 2014).

Meanwhile, Umno’s mouthpiece, Utusan Malaysia, has been carrying articles daily, by Umno and Pas leaders, by Muslim NGOs of all hues and colours, in praise of Pas leader Datuk Abdul Hadi Awang and in support of Pas’s proposed hudud bills. Those individuals and groups pronouncing that all Muslims are duty bound to support (wajib sokong) the bills have been highlighted. Naturally, DAP leaders and a few PKR ones have been consistently condemned, daily.

No doubt, the entire campaign is a well orchestrated one.

Pas should push for more inclusive politics

Pas should be wary of Umno’s political re-strategising. Beware of the reactionary Old Politics that they are promoting. Do not fall for their bait.

We also call upon Pas leaders not to push for the implementation of hudud laws in Kelantan, not now nor in the future. For Malaysia is a multiethnic, multireligious society and there cannot be two systems of justice.

In this regard, they ought to follow the example of Abdurrachman Wahid (or Gus Dur as he was popularly known) who was the leader of Nahdhatul Ulama, and president of Indonesia. He took the stance that it was not appropriate for Indonesia to introduce the Sharia and proclaim Indonesia as an Islamic state, in this day and age, and in view of its multi-religious make-up.

This is a stance that the Muhammadiyya, which with the NU are the two largest Muslim organisations in Indonesia, also took, and continues to do so. Yet, they continued to combat authoritarian rule and KKN (korupsi, kolusi dan nepotisme or corruption, collusion and nepotism) and to promote justice and equality.

We appreciate that one reason why Pas is pushing for the Sharia in general is that it is concerned about widespread social ills and the increasing number of political and financial scandals under 50 years of Umno-BN rule. Consequently, the existing civil-legal system has been found extremely wanting.

All the more reason, therefore, to reform this civil-legal system by pushing ahead with New Politics, characterised by a two-party democratic system under which:

  • there will be checks-and-balances between the executive, legislature and judiciary;
  • there are free and fair elections;
  • ordinary people, public interest societies and free media can participate and have their say;
  • the interests of the rakyat, not those of the political elites and their cronies, are put on centre-stage; and
  • the rights of all peoples regardless of their ethnic and religious backgrounds, race or gender, are protected.

We believe that all these safeguards and aspirations are not only contained in the Federal Constitution but also are in keeping with the teachings of Islam and indeed of all religions.

We wish that Pas would join with all justice- and democratic-loving Malaysians to champion this noble cause, one that is inclusive of all.

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Is Malaysia really lost and broken? People of goodwill must continue to strive to bring about change: we can rebuild the country into a land where we do  not live in fear, but in freedom, says Zaid Ibrahim, in the concluding part of his presentation.

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