IF we were to believe everything the politicians are saying about hudud, we would come to three conclusions. One, that implementing the punishments prescribed under hudud is divine law that no Muslim can question, and hence is inevitable. Two, that hudud cannot be implemented in Malaysia because of the Federal Constitution and our multi-cultural composition. And three, non-Muslims have no business worrying about this Islamic penal code.
Are any of these assumptions about hudud accurate? Beyond that, what are the proclamations by PAS, Umno and Parti Keadilan Rakyat (PKR) politicians regarding hudud really all about?
Hudud: Divine or man-made?
When a Muslim says he or she has to uphold hudud, one needs to ask which hudud do they mean? The truth is, hudud as we know it today is human-made and therefore changeable and contestable.
For example, how many of us know that the Quran prescribes punishment for only four types of crimes — theft, robbery, adultery and slanderous accusation of adultery? And that classical jurists, i.e. men, expanded it to six, and in the 2002 Terengganu hudud and qisas legislation, it was expanded, again by men, to seven.
Three crimes that are today punishable under hudud — apostasy, consumption of alcohol and treason/armed rebellion — are not provided for under hudud in the Quran. Neither is the punishment of stoning for adulterers prescribed in the Quran. And neither, by the way, is death for apostasy.
What else about hudud as we know it today is based on human understanding and interpretation, and not divine authority? The requirement of at least four witnesses in a rape case was to protect women from slander and accusations of adultery, not to protect men from rape charges. The Quranic verse¸ Surah An-Nur 24:4, referring to the need for four witnesses stipulates this: “And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations) – flog them with eighty stripes and reject their evidence ever after; for such men are wicked transgressors.” And so an injunction that was originally meant to protect women has been distorted, through human agency, into one where men are protected from accusations of rape.
Sisters in Islam (SIS) has noted that the hudud enactment that disqualifies women as witnesses also has no precedence in the time of the Prophet who, in fact, accepted women’s testimony as valid and legitimate.
Clearly, so much of hudud as we know it today is not divine and runs contrary to the Quran and Hadith because of flawed human interpretation. And yet, Muslims and non-Muslims in Malaysia are being told, no less by the Opposition Leader, that Muslims cannot but adhere to the implementation of hudud in Malaysia.
“We’re not ready…yet”
When politicians such as Deputy Prime Minister Tan Sri Muhyiddin Yassin and Pakatan Rakyat de facto leader Datuk Seri Anwar Ibrahim assure Malaysians that hudud cannot be implemented because of the federal constitution, should we feel secure?
I don’t see any reason to be assured. Because what they are really saying — and it’s apparent in the qualifications they make — is that at some point in time, Malaysia could be ready for hudud to be implemented. After all, the federal constitution can be amended. Indeed, it has been amended more frequently than the much older American constitution.
Politicians from both coalitions are also fond of saying that our multi-racial and multi-religious composition makes it untenable to implement hudud. At the same time, however, we’re hearing that the justification for implementing hudud in Kelantan is because most Muslims there want it.
Since Malaysia is a Muslim-majority country, isn’t it conceivable that the argument will one day, too, be made that the majority of citizens want hudud implemented nationwide? After all, non-Muslims in Malaysia have already been told they can’t use “Allah” and can’t eat publicly during Ramadan, and movies about pigs have been banned because of Muslim sensitivities.
None of your business
Kelantan Menteri Besar Datuk Nik Aziz Nik Mat has told non-Muslims to stop making a fuss over hudud because it does not affect them. Catholic Bishop Dr Paul Tan Chee Ing has a similarly disturbing position. He believes Muslims in Kelantan should be allowed to implement syariah so long as non-Muslims are not affected.
The assumption that non-Muslims will not be affected is a flawed one. We should understand by now that implementing syariah, including hudud, indicates growing theocratic tendencies in government. And the problem with any theocracy — whether an Islamic, Christian or Hindu state — is that human-made laws are decreed to be unchallengeable and unchangeable because they are purportedly from God. It is for this reason that respected Muslim scholars such as Emory Law Professor Abdullahi An-Naim have argued that any Islamic state, since the Prophet, is undemocratic.
If we accept that one should remain silent because one is unaffected, then this is what we are really saying: That men should remain silent when women are discriminated against, Malaysians should not speak up when the Palestinians suffer aggression, and those of us who live outside of Bakun should not protest a mega-project that stripped away indigenous land rights.
If hudud as we know it today is flawed, and results in injustices against Muslims, it would be incumbent on justice- and peace-loving non-Muslims to make a fuss. It would also be well within all citizens’ rights to determine whether we want our government — at state or federal levels — to wield almighty and divine authority over us.
What’s missing from the political rhetoric about hudud is that the Quran provides for repentance and reform for the four crimes it names under hudud. Indeed, forgiveness, mercy and compassion are a recurring and constant theme in the Quran. And yet current provisions under hudud laws do not provide for repentance, forgiveness and reformation.
SIS also points to a hadith that says, “Avert the hudud from being inflicted as much as you can, and whenever you find a way for a release (of a defendant), go through it, since it is better for one who rules to make a mistake in acquitting, than to make it in punishment.” Hence, it is accepted Islamic doctrine that it is better for many guilty persons to go free than for one innocent person to be wrongfully convicted.
And yet, this critical aspect about Islam and hudud is nowhere to be found in the rhetoric of PAS, Umno or PKR politicians. What a shame. Want to know what would be a bigger shame? If all of us allowed these politicians to get away with using Islam as the ball they can toss about in the games they play.
Jacqueline Ann Surin is chagrined and yet not terribly surprised that PKR is now also in the race, with Umno and PAS, to out-Islamicise one another.