Undertones of the RUU355 debate

THERE has been much debate about the proposed amendments to the Syariah Courts (Criminal Juris­diction) Act 1965, more famously known as RUU355. Tensions are running high with a massive demonstration in support of the Bill last Saturday. The strenuous protagonist of this Bill, PAS, has reiterated that the main aim of the proposed amendment was not about hudud but merely to strengthen the syariah laws and Syariah Courts.

But if it is about strengthening the current syariah system, then PAS must surely have dissected the weaknesses that require strengthening. To general observers, the weaknesses are so apparent and appalling.

Just look at the number of cases of women abandoned by their husbands and children deprived of their maintenance. Or the prolonged cases of fasakh or annulment of marriage that could take years – if they ever see the end of it. Most of the time, the reason is due to the failure of the men showing up in court – which is often deliberate – on the pretext of “teaching” the woman a lesson.

This is a very clear manifestation of injustice committed in the Syariah Courts, and committed in the name of Islam, with no foreseeable remedy. If indeed one really wants to strengthen the syariah system, wouldn’t it be more meaningful to strengthen the Islamic Family Law, that falls under the ambit of the Syariah Courts?

It looks rather foolish and irresponsible when one fails to strengthen these aspects within their jurisdiction, and instead focuses on the criminal syariah matters, by increasing to 30 years’ imprisonment, RM100,000 fine and one hundred lashes of the cane from the current limit of three years’ imprisonment, RM5,000 fine and six lashes of the cane, famously known as 356.

Why this preoccupation with severe punishments for syariah offences? Even if the amended version proposed in November 2016 is deemed constitutional since it did not have the same over-arching principle that intrudes on the Federal Constitution as the May 2016 Amendment, why the need for such a harsh punishment?

Will it really “strengthen” syariah law and the Syariah Courts when we know for sure that the glaring weaknesses are not being tackled or probed? Wouldn’t the religion of Islam look more just when the so-called guardians of the faith fight for the rights of the abandoned wives and neglected children?

And does the imposition of such harsh laws make us more Islamic in the eyes of God?

We have to ask ourselves, were we not imbued with the notion that the most noble thing to be done is to dispense justice?

In this regards, a renowned student of Ibnu Taimiyyah, Ibnu Qaiyyim al-Jauziyyah, in his book I’lam al-Muwaqi’in, said: “The foundation of syariah is wisdom and the safeguarding of people’s interest in this world and in the next. In its entirety it is justice, mercy and wisdom. Every rule which abandons justice into tyranny, mercy into cruelty, good into evil and wisdom into triviality does not belong to the syariah; even though it might have been introduced therein by implication. The syariah is God’s justice and mercy amongst His people. Life, nutrition, medicine, recuperation and virtue are made possible by it. Every good that exists is derived from it, and every deficiency is the result of its loss and dissipation. For the syariah, which God entrusted His Prophet to transmit, is the pillar of the world and the key to success and happiness in this world and the next.”

The ultimate aim of syariah, like the aim and purpose of any law in the world, is to establish justice and to preserve and promote human welfare. And since syariah did not come to us in a codified form, it requires our human agency to approximate God’s justice. And as humans, we might err; but to err in approximating God’s justice is better than to enforce something because it is believed to be the Will of God.

We should not gravitate into becoming a Taliban State by imposing harsh syariah criminal laws when in reality, we fail to solve mundane issues such as divorce and alimony in our Syariah Courts, or the more pressing issues such as economic equality and good governance.

When some people are still living in makeshift tents from the floods two years ago, when clean and colourless water is still a main problem, and when many of our youths are still unemployed with a high rate of intravenous drug users among them, to prioritise pushing for a harsher syariah penalty for personal offences only proves that we failed to understand Fiqh Awlawiyyat, or the jurisprudence of priorities, in decision-making.

Does lashing people with a hundred lashes for fornication make us warriors of Islam or defenders of the laws of God? The Prophet himself was very reluctant to impose a hadd punishment on an adulterer who made a self-confession.

When Ma’iz al-Aslami confessed his act of adultery to the Prophet, the Prophet refused to engage him in conversation and turned his face away. While we acknowledge there are variations in the report, what transpired was that the Prophet finally asked, after avoiding Ma’iz for the fourth time, whether Ma’iz was sane.

Then, he asked whether Ma’iz really knew what fornication meant or “you only kissed her, or winked at her, or checked her out?” And lastly, the Prophet asked Ma’iz or his people if he had ever been married.

These three elements, plus the Prophet’s effort in turning his face away from Ma’iz and shunning him, can only be interpreted as an extreme reluctance to apply the hadd punishment. The Prophet’s intention was clearly to allow Ma’iz to rethink and to be left alone so that he could repent.

Now compare this noble attitude of the Prophet to that of the Talibans in PAS today.

Mercy and compassion are alien to them, when it is in fact generally considered that mercy is to be the all-pervasive objective of the syariah.

Datuk Dr Ahmad Farouk Musa is a director at the Islamic Renaissance Front, a think-tank advocating reform and renewal in Muslim thought. The views expressed here are entirely the writer’s own.