Tread with caution on hudud

When laws made by man in the name of religion are once part of the law books, any attempt to amend or repeal them becomes difficult if not impossible, as such an attempt is considered an affront to religion.

Qasim A. Moini, The Star

FOR Pakistani observers, recent efforts in Malaysia to introduce hudud laws, supposedly derived from religious injunctions, bear something of a resemblance to what their own country experienced 37 years ago, when military ruler General Zia Ul Haq launched his controversial “Islamisation” programme to shore up support for his coup d’état.

Of course there are significant differences in both countries’ situations; in Malaysia the law has been introduces by PAS, an Islamist party, due to its own political calculations.

In Pakistan, Gen Zia – who in 1977 had overthrown and later (in 1979) executed Zulfikar Ali Bhutto, the country’s democratically elected prime minister – used the Hudud Ordinances, as the “Islamised” laws are referred to, to burnish his own credentials as Pakistan has a 97% Muslim majority.

The subject of debate here is not at all to question the validity of religious injunctions; that is the matter of personal belief.

The issue, as we in Pakistan have experienced, is that when laws made by man in the name of religion are once part of the law books, any attempt to amend or repeal them becomes difficult if not impossible, as such an attempt is considered an affront to religion.

The fact that today, in 2016, 28 years after Gen Zia’s death and with democratic governments having come and gone, it is next to impossible to change the General’s controversial laws, will bear testimony to this fact.

As stated above, Pakistan has an overwhelming Muslim majority, while it is clearly stated in our constitution that no law repugnant to the Quran and Sunnah (traditions of the Holy Prophet) shall be enacted in this land. However, Gen Zia cleverly used religion as a smokescreen to cement his brutal rule – which lasted 11 years – with his laws adding to the divisions in the country.

Take, for example, the Zakat Ordinance passed in 1980. Zakat is a religious obligation that requires Muslims to donate a part of their income to charity every year.

However, the General gave the green light to the Government to deduct this charity from citizens. This “forced charity” fanned division as Pakistan has a significant Shia Ithna Ashari minority, which follows the Jafari school of jurisprudence (as opposed to the Sunni Hanafi school followed by most of the rest of the Pakistani Muslim population); due to differing interpretations of religious law, Shias have a different method and criteria for calculating Zakat.

The General’s ordinance made it obligatory for the state to deduct Zakat from all Muslims’ savings bank accounts. After much agitation and street protests from the Shia community, the state had to back down and made an exception for followers of the Jafari school.

Equally controversial were the actual Hudud Ordinances, introduced in 1979, particularly the laws referring to adultery and fornication. Activists have criticised these for, in fact, punishing rape victims, who ended up being imprisoned for zina, or sex outside of marriage.

In effect, there was no distinction between rape and adultery. Other punishments under the Hudud laws included stoning to death and whipping.

Critics claimed the legal lacunae had in fact made a mockery of justice, instead of handing down stern punishment to those involved in heinous crimes such as rape.

While some of these laws had partially been amended in 2006, they have yet to be repealed, as women’s rights activists have demanded. In fact, in 1983 a movement was launched for the repeal of the laws.

It is interesting to note that even despite the passage of such laws, discriminatory as they appear, instances of rape have not come down significantly in Pakistan. Instead, these laws have ended up stigmatising and punishing women. The General has long gone, but his dictatorial policies remain in Pakistan.

Keeping the Pakistani experience in mind, Malaysia would be advised to tread cautiously. Despite the fact that Pakistan is a Muslim-majority state, such laws seemingly imbued with religious content have fuelled divisions.

Malaysia, with a multi-ethnic and multi-religious population, will face a much greater challenge if such laws are enacted, as there is already a stir within minority communities.

Unless governance is participatory and inclusive, it will fail to create national harmony. Pakistan had these laws thrust upon it by a military dictator who was bent upon reshaping the country in his own image, and creating a support base by appealing to conservative elements.

As stated earlier, even after the restoration of democracy, Pakistan has been unable to reform these laws completely, simply because they are viewed as “religious” injunctions, with hardliners rejecting all alternative interpretations.

Malaysia, as a pluralistic democracy, must tread with care, especially considering issues where communal harmony is concerned.

To create a progressive, just welfare state that treats all its citizens equally, legislation must not be divisive and partisan. Pakistan has learnt this the hard way, and is still reeling from the effects of dictatorial experiments.

Malaysia can choose a different path.