Hudud and the distortion of Islam
Azlan Abdul Razak, The Malaysian Insider
When Kelantan first exhibited her zeal in implementing hudud law through the passing of Kelantan Shariah Criminal Bill (H) 1993 the same year and Terengganu in 2002, we knew that something was wrong.
This law, as enacted, required a woman who reported that she had been raped to produce four male witnesses in support of her case, failing which a charge of false accusation resulting in 80 lashes on conviction would ensue.
When the same legislation subjected a pregnant rape victim to the irrefutable presumption of zina (illicit sex), we were convinced that it was not Islamic.
When women are not accorded equal right to be a witness of fact as men under their version of hudud law, one would innocuously think that God would not have had to create women otherwise.
When all the panoply of other laws was enacted at the risk of undermining the worth of women in the name of religion, we defended our faith against this bastardised understanding, thinking that God was not God if God was partial and sexist.
Now that the recent news of the most alarming nature had caused an ephemeral yet massive political ripple in Terengganu, with the sudden swing of allegiance, one would fear that the otherwise would-be ruling party of the day would resume its fetish for hudud law that it once relished in then.
Constitutional cleavage writ large
The Federal Constitution, through Article 76A, permits the Parliament to expand and extend the legislative power of the State to enact laws on matters that are contained in the Federal List.
While the proponents of hudud rightly argue that the realisation of hudud has formidable legal basis by virtue of the aforementioned authority, it is argued that its ramification would be constitutionally macabre and that its enforcement will only open to a door of a constitutional maze.
Assuming the private member’s bill on hudud succeeds, thereby realising the possibility of its enforcement on Muslims, would that not then pose a serious constitutional issue of flagrant violation of Article 8 of the Federal Constitution on equality before the law, in the instance where the alleged perpetrators hail from different faiths and are thus tried in different sets of proceedings?
The drafters of the Kelantan Code had, in 1993, declared that a Muslim who is convicted under it would not suffer from another trial for the same offence under the Penal Code. Such unfounded guarantee notwithstanding, it must be borne in mind that the decision to prosecute or to discontinue the prosecution rests with the discretion of the Public Prosecutor by virtue of Article 145 of the Federal Constitution.
It is worth noting that this gives rise to the double-jeopardy dilemma in the event that the Public Prosecutor sees fit that the alleged perpetrator be charged in the civil court.
Also, with the implementation of hudud as a creature of Article 76A of the Federal Constitution, crystallised through its private member’s bill, it is submitted that Schedule 9, List II, Paragraph 1 that serves as a cauldron of authority for the Shariah Court to exercise its jurisdiction to the exclusion of that of the Federal List, would be of no practical relevance, assuming the working of Article 76A of the Federal Constitution overrides the (in)famous Schedule 9, List II, Paragraph 1 of the same document.
At this juncture, a judicious wisdom of the Federal Court is of crucial importance. In exercising its power under Article 130 of the Federal Constitution, the Federal Court has the opportunity to clear the air once and for all with considerable regard to the interest of the public on the constitutional workability of hudud law.
On the same score, it remains the writer’s personal question if the Federal Court would be empowered (and emboldened) to declare a provision in the Constitution as unconstitutional by reason of contradiction, in both spirit and essence, with another provision of the same sacred document, i.e, the working of Article 76A itself as against other provisions on the fundamental rights.
It is asserted with the greatest respect that any legislative means must be subordinate to the fundamental rights.
One may conveniently promise the earth and the moon, the whole kit and caboodle, but in the end, the capability to honour such promise is not a question of choice. It is, and always has been, a question of legal authority.
