Uncommon Sense with Wong Chin Huat: De-politicising hudud

HUDUD. One is either for or against its implementation in Malaysia – or so the prevailing political discourse goes.

But what are we missing in between? Have proponents of hudud adequately justified their position, and how they would apply the Islamic penal code in today’s society? Can those who oppose it ever imagine a human rights-friendly version of hudud? The Nut Graph asks political scientist Wong Chin Huat whether polar positions on this controversy can ever meet.

TNG: How valid is the claim by some PAS leaders that hudud will not affect non-Muslims? Even a Catholic bishop says non-Muslims will not be affected.

I stand corrected, but the respected bishop this time sounds more like a politician or a diplomat. This claim is not valid on two levels. When a crime involves Muslims and non-Muslims, the application of two sets of laws will affect both Muslims and non-Muslims. For example, existing syariah law is not supposed to affect non-Muslims’ rights, but even this is not true when non-Muslims have family members, friends or partners who are Muslims.

If a non-Muslim girl is raped by Muslims, will the suspects be charged in the syariah court or the civil court? If they are charged in the civil court, they could face a less severe punishment than if they sexually assaulted a Muslim girl and faced punishment under hudud. Now, wouldn’t this difference in penalty affect a Muslim criminal’s choice of target?

Consequently, one may say if hudud law could “prevent” crimes that target Muslims because of the highly deterrent penalties, that means that hudud is effective and good. Then non-Muslims, too, could prevent crime by adopting hudud law. This is called path dependence. What’s wrong with it? It’s not so much a question of right and wrong. But if non-Muslims are to eventually adopt hudud, shouldn’t they have a say from the very beginning?

From the principle of solidarity, all Malaysians should care about one another. How is an indifferent citizenry good for the nation state? Do we want Chinese or Indian Malaysians who say, “Why should I care about poor Malays or Dayaks or Kadazandusuns because I am not one”? Similarly, it is unacceptable for non-Muslims not to care about hudud affecting the lives of fellow citizens who are Muslim.

I am happy to be persuaded to support hudud, whether at federal or state level, on the grounds of merit. For example, many non-Muslims use Islamic banking and finance, by choice, because it benefits them. So, prove your case on hudud, too.

To do it at the state level is possible if we are willing to have a looser federation. Hence, if criminal justice becomes a state matter or comes under joint federal-state jurisdiction, then all states must have identical power on this and related matters like policing. For instance, a state that opposes corporal punishment must have the power to prohibit extradition of criminal suspects to another state that practises it.

Now, one may avoid the question of merit and simply cite the justification of communal autonomy. There is nothing wrong with communal autonomy if one believes in “smaller government” or greater freedom from the state. However, if communal autonomy comes to the point where it imposes upon community members and takes over the state’s regulatory powers over citizens, we would effectively be undermining the nation state and preparing for its substitution by smaller, communal states. Is that really what we want?

And as a pre-emptive argument, this cannot be compared to, say, minorities’ rights to mother-tongue education, which is voluntary in practice. If the Chinese education movement says all Chinese Malaysians must be forced to learn and speak Chinese, we must oppose it rather than permit it in the name of communal autonomy.

The principle should be diversity and differentiation must always be by choice, not by imposition.

Some states where syariah law, including hudud penalties, are enforced (e.g. Aceh, Nigeria, Sudan, and Saudi Arabia) are also the same states that have been condemned for human rights violations. Where has hudud been able to co-exist with universal human rights principles, and what does this say about hudud’s viability in the modern world?

I strongly disagree with a contemptuous dismissal of Islamic law as “barbaric”. Instead, I prefer to treat Islam as an equally legitimate source of legal ideas like ancient Anglo-Saxon laws. If common law has been subjected to modern scrutiny, including on human rights grounds, then Islamic law, as a legal source, must also go through the same scrutiny by mortals. You can’t keep it in the realm of the divine if you want a multicultural country in a multicultural world to accept it.

If Islamic banking and finance can win many non-Muslims over with its intrinsic superiority over conventional banking and finance, I won’t rule out the possibility of human rights-friendly hudud or syariah-compliant laws. They may even be more humane than western laws. But you’ve got to prove your case.

If there is serious concern over the state of human rights in countries/provinces with full syariah laws like Saudi Arabia, Sudan, Aceh, and the nine northern states of Nigeria, then the proponents of hudud in Kelantan have a duty to explain to the sceptics. How are their proposed laws different from those in other countries? How can Kelantan’s hudud law do better than its counterparts in these countries and the common law criminal justice regime in Malaysia? The burden of proof always lies with the proponents of change, not with the defenders of the status quo.

Some Muslims feel an obligation to support hudud as an intrinsic part of their Muslim faith. Isn’t this the same with believers of any other religion who feel that certain tenets of their faith must be kept, even if it affects or even offends those of a another religion? One example is proselytisation. How do we balance competing rights in a multireligious setting?

Few Malaysians, Muslim and non-Muslim alike, unfortunately know of prominent Islamic thinker Prof Tariq Ramadan, who made a call in 2005 for the Muslim world to “hold a moratorium to all implementations of the Islamic penal code, stoning and executions”.

In Malaysia, only a few Muslim thought leaders like Dr Ahmad Farouk Musa of the Islamic Renaissance Front and Sisters in Islam dare to voice principled objections to hudud.  And how many people know that these Muslims are not hell-bent on asserting their religious “rights”?

I don’t fear hudud as much as I fear the argument that says, “All Muslims must…” This line of thinking invalidates all debates. Imagine if someone now says, “All Muslims must believe in establishing an Islamic state in Malaysia. Period.” How many Muslims would dare to say no and be labelled traitors?

If we refer everything back to just one position, then we are bound to live – and perhaps die – in conflict. And remember, the evangelists of other faiths could well also want to assert their right to proselytise. How do you stop them without practising double standards?

I think we should celebrate religious diversity in our society. It’s a blessing that we have pious Muslims who want to share the greatness of their faith with their co-religionists and other Malaysians. The same goes for the faithful of other spiritual traditions and secular ideologies. This is not an issue, as long as they are willing to engage in open-ended debate and win others over by persuasion.

Briefly spell out the legislative path for any state or the federal government to implement hudud in Malaysia.

Since criminal justice is Item 4 on the Federal List in the Ninth Schedule of the Federal Constitution, it means only the federal government can make laws related to the punishment of crime. This is the obstacle facing Kelantan and Trengganu in implementing hudud law.

The constitution is, of course, not cast in stone and can be amended if there is national consensus. The Kelantan government can therefore lobby other state governments to opt for a looser federation. This may involve some horse-trading as some states may want more power in other areas. It may not be a bad thing if this comes about because people who want a more Islamic state can move to Kelantan, while others who want a freer society can move to states that opt for liberalisation or even secularisation. We can then all live with our own cups of tea.

How can the Pakatan Rakyat realistically resolve this recurring controversy and still retain voter confidence?

The Pakatan Rakyat should recognise that pushing it aside will not work. PAS’s top leaders have not stopped talking about hudud even after the coalition’s emergency meeting on 29 Sept 2011. The only way to handle this without alienating both the Islamists and others is to have a sincere discussion. The Islamists have every right to be heard, and everyone else, too, has every right to demand to be convinced. The devil is in the details. The sceptics are also psychologically arrogant and intellectually lazy if they refuse to understand hudud and articulate their concerns in a way the Islamists can understand.

More open-ended and detailed discussions may reduce the political value of hudud as an arena where PAS and Umno try to out-Islamise each other. Open discussion will bring more understanding and prudence to some, less fear and contempt to others. That may eventually allow all parties to meet somewhere in the middle.

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Wong Chin Huat is a political scientist by training and a journalism lecturer by trade. If readers have questions and issues they would like Wong to respond to, they are welcome to e-mail editor@thenutgraph.com for our consideration.