Hudud would be revolutionary, unconstitutional
If Parliament enacts a hudud law, it would represent a monumental breach of faith in multi-ethnic, multi-religious Malaysia, asserts Tommy Thomas.
Tommy Thomas, Aliran
The hudud debate has so far been conducted in the context of Islamic law and sharia, with proponents wishing to contain it within the faith. This is misplaced.
The debate is actually housed in the realm of the administration of justice generally, and, the enforcement of criminal law in particular. In consequence, all the peoples resident in Malaysia, citizens and non-citizens, and Muslims and non-Muslims are profoundly affected by the debate.
What is hudud?
The following definition of hudud is taken from a translation of Sahih Muslim, Book 17: The Book Pertaining to Punishments Prescribed by Islam (Kitab Al-hudud) and serves as the basis of this article. “The penal laws of Islam are called Hudud in the Hadith and Fiqh. This word is the plural of Hadd…….Punishments by way of Hadd are of the following forms: death by stoning, amputation of a limb or limbs, flogging by one hundred or eighty strokes. They are prescribed respectively for the following offences: adultery committed by married persons, theft, highway robbery, drunkenness and slander imputing unchastity to women.”
Emeritus Professor Clive Kessler wrote about its impact in January 2009:
The introduction, even the mere hinted suggestion, of any proposal for the official infliction of pain on people’s bodies and souls — for outright crimes against their fellow human beings, or even for the exercise of independent intellectual and spiritual conscience — must markedly shift society away from the gentle end, and decidedly towards the crude and brutalising end, of the ethical scale. That seems indisputable.
Any such legally mandated assault upon the citizen — any citizen or subject of the state — with its mutilation of bodies, maiming of souls, shaming and extreme humiliation of persons and its violation of personal conscience and human dignity will discredit the state, its laws, and those who uphold them. This is not a direction that a modern progressive state can take or its citizens, if they are thoughtful, condone. Those who endorse such measures must have a different agenda. (my emphasis)
Hudud would therefore result in a totally different system of criminal law and procedure because both the principles in establishing the guilt of an accused and the punishment of a convicted person would be radically different from that which has prevailed in Malaysia for centuries.
Hudud is accordingly a radical form of punishment for a criminal offence. Hudud is an integral part of “criminal law” because punishment is contemplated, and the life and liberty of a convicted person is at stake.
Any hudud system will not be infallible. Mistakes occur even in a system which has the most careful prosecuting agency, experienced defence counsel and a judiciary vigilant in its protection of the rights of an accused. Can one imagine the trauma, both of society and the individual accused (and his family) if our hudud system subsequently discovers that a person was wrongly convicted – and his limbs amputated? The state’s mistakes in hudud punishment can thus never be rectified.
The common law
The Japanese occupation of Malaya between 1941 and 1945, when law was administered brutally, demonstrated the inherent fairness and justice of the common law system which had already taken shape in the Peninsula. Lawlessness and anarchy continued after the Japanese surrender in August 1945.
The British Military Administration that temporarily governed Malaya was hugely unpopular because it could not provide law and order. The Emergency declared in 1948 to combat the armed struggle by Chin Peng’s Malayan Communist Party suspended civil liberties and gave massive power to the army and police.
But by the time Tunku Abdul Rahman became Chief Minister after the July 1955 Federal Legislative Council elections, the country was relatively at peace; law and order had been restored; and Merdeka was on the horizon.
Fundamental to the system of government on Merdeka Day particularly, with respect to the third branch, the judiciary was the common law system.
In fact common law was accepted by everyone concerned (and it must be recalled that the Bar Council had presented its memorandum to the Reid Commissions in 1956), and no other system of law was even mentioned, let alone considered.
Central to the common law system is criminal law, which even prior to Merdeka had been codified in the Penal Code, the Criminal Procedure Code and other Ordinances. Upon independence, criminal law was to continue to be administered in the ordinary courts of the law, with juries sitting to determine the guilt of their peers for serious crimes. Thus, it is crucial to remember that the present criminal law system was freely and voluntarily chosen by the people of Malaya on Merdeka Day.
The principal reason for the universal acceptance of the common law system of criminal law, initially in Malaya in 1957 and subsequently by Singapore, North Borneo and Sarawak when Malaysia was established in 1963 is the existence of a plurality of races. We have never been a homogenous society, like the Japanese. Diversity of races and a variety of religions have characterised Malaya for centuries; the mosaic becomes more varied for Sabah and Sarawak.
In such circumstances, it is impossible for members of one religion to persuade members of other religions, atheists and non-believers to accept a criminal law system based on one religion. As an undisputed historical fact, hudud was never even discussed as a possible alternative system in the independence negotiations in 1957 and 1963.
In the Federal Constitution, “criminal law and procedure and the administration of justice” are matters solely for Parliament. Likewise, the creation of offences.
Accordingly, any attempt to introduce hudud, even if limited to Muslims, by any State Legislative Assembly would be unconstitutional because in “pith and substance” punishment is a matter of criminal law and procedure, coming solely within Parliament’s legislative competence. That is why the Kelantan Syariah Criminal Code Enactment of 1993 and the Trengganu Syariah Criminal Enactment of 2003 have not been implemented in Kelantan and Trengganu.
