Modern laws can be religious too

On May 1, Brunei introduced Islamic hudud laws, or criminal punishments. Talk is rife that the Malaysian state of Kelantan, which is governed by Parti Islam Se-Malaysia (PAS), may follow suit.

Over the past 20 years, the Malaysian federal government on two occasions blocked the Islam-based party from implementing hudud laws in the states it governed. The first attempt was the Kelantan Syariah Criminal Code (II) Bill passed in 1993, and the second, the Terengganu Syariah Criminal Offences Bill, in 2002.

The federal government argued that the Syariah codes were incongruent with the values enshrined in the federal Constitution, which underscores freedom of religion. Although PAS has since 2008 been pushing for a “benevolent” state, or Negara Berkebajikan, which the party defines as “accountable governance based on the principles of justice and compassion”, its position on wanting to implement hudud laws has been consistent.

The tabling of a private member’s Bill in Parliament was initially planned for next month, which could have paved the way for hudud to finally be implemented in Kelantan. However, the plan was postponed — not abandoned — because of “technical” issues.

POLITICAL ISSUE IN MALAYSIA

But why has the hudud law debate resurfaced again in Malaysia? Islamic hudud laws include amputation or mutilation of hands and feet, stoning, whipping and the death sentence for criminal offences such as theft, robbery, adultery, intoxication and apostasy.

So far, those not in favour of introducing hudud laws have argued that the time has to be right and that Malaysia’s multicultural fabric has to be considered. Nevertheless, this line of argument not only raises hope that there will be a time when hudud laws can be implemented, but also negates the opportunity to reinterpret what constitutes Islamic law.

Recently, Prime Minister Najib Razak said the government had never rejected hudud as God’s law.

“There is a big difference between rejecting hudud and not implementing it due to various restraints and issues,” he said.

In the same vein, opposition leader Anwar Ibrahim, who was a Cabinet minister in 1993 during the Kelantan hudud Bill saga, was careful not to reject hudud laws outright this time, citing that more discussion with PAS was necessary.

Mr Najib’s attitude towards the Kelantan government’s recent proposal could be interpreted as an attempt to split PAS from the opposition Pakatan Rakyat (PR). The Democratic Action Party (DAP), also a party with the ideologically loose PR alongside PAS and Parti Keadilan Rakyat, has vehemently rejected the implementation of hudud.

The passing of former DAP chairman Karpal Singh last month served as a catalyst for the United Malays National Organisation (UMNO) to offer an olive branch to PAS leaders for unity talks and to discuss the hudud issue again. Numerous times during his lifetime, Singh called for Malaysians to respect the secular nature of the Malaysian Constitution. But Mr Najib’s move may have the unintended consequence of sidelining the Malaysian Chinese Association (MCA), UMNO’s coalition partner. MCA deputy president, Dr Wee Ka Siong, has threatened to re-evaluate the party’s cooperation in the government should UMNO continue to support PAS’ hudud proposal.

Yet, the prime minister is not inconsistent with his predecessors. As mentioned, UMNO leaders’ reservations with the implementation of hudud laws mainly revolve around timing and demography.

Malaysia’s first prime minister, Tunku Abdul Rahman, was sceptical of Malaysia becoming an Islamic state, because almost half of its population were not Muslims. In 2012, former Prime Minister Mahathir Mohamad reiterated his earlier stance that he was not against hudud as a mode of punishment but with PAS’ particular stream of hudud. He argued that it would be unfair if the laws were imposed on Muslims while civil laws applied to non-Muslims for the same criminal act.

WHAT MAKES GOOD LAWS?

Unfortunately, the hudud law debate in Malaysia ignores the fact that modern laws also uphold Islamic values and principles such as justice, compassion, freedom of faith, minority rights and human rights.

To be sure, laws evolve over the centuries and are constantly fine-tuned to cater to societal needs while remaining committed to universal Islamic values and principles. Modern-day laws are by-products of this evolution. Although the modes of punishment referred to as hudud in the Quran were revealed 1400 years ago, the reality is that many Islamic societies have not implemented them. However, Islamic countries that do not implement hudud laws — such as Egypt, Indonesia (except Aceh), Jordan and Turkey — continue to retain their Islamic identities.

Thus, the arguments for and against the implementation of hudud have to move beyond demographic and temporal factors. To use these arguments will only raise the question: Is it the appropriate time for hudud laws now?

Rather, what have to be discussed are what constitutes good laws, how they are in line with the principles and values enshrined in the Quran and how they are relevant to the modern world.

Furthermore, the definition of Islamic laws should consider the changing and complex nature of crimes in contemporary societies and their appropriate sanctions. For instance, theft in the modern world does not only constitute the physical act of stealing but also the infringement of copyright laws or intellectual property rights.

Muslim societies should think of ways to resolve the inequalities that continue to exist and consider whether amputation is the best way of curtailing any form of economic exploitation. Mutilation of the poor will only exacerbate inequality and reduce the chances of improving their lives.

Therefore, what has to be emphasised are the values and principles underlying the punishments stated in the religious traditions, not its forms. A major rethinking is necessary to point out that modern laws can also enshrine Islamic ideals such as compassion, justice, human rights and the right to privacy.

ABOUT THE AUTHOR:

Norshahril Saat is a PhD candidate at the Department of Political and Social Change, Australian National University. He researches on Indonesian and Malaysian politics.