We, the G25 comprising concerned Muslim citizens, call for the upholding of the highest standards of justice in the implementation of laws, including Hudud laws. “Be just, that is nearer to righteousness.” (Quran 5:8). Justice is the overriding principle of Islam.
Bearing in mind the injunction for Muslims to be the best and moderate community or khaira ummatin-ummatan wasatan and recognising that there is a diversity of juristic interpretations or iktilaf concerning Hudud laws as part of Shariah laws, we have concerns as to whether the Kelantan Hudud law, namely, the Kelantan Syariah Criminal Code (11) Enactment, 1993 as amended in 2015 will succeed in upholding justice as enjoined in the Quran.
Sheikh Yusuf al-Qaradawi, the Chairman of the World Union of Muslim Scholars, has provided the basic guidelines on the methods of implementation of the Hudud law in society based on his observations of the Prophet Muhammad SAW’s approach in implementing Hudud law.
According to Sheikh Qaradawi, the application of Shariah must be governed by Ijtihad, or creative thought, to determine how it can be enforced today. It would not be helpful to take rulings from ancient texts and apply them in totality to modern societies. Just as the ulama or Muslim scholars in the past used Ijtihad to determine how to apply Shariah, scholars today must do the same. The problem, according to Sheikh Qaradawi, is that Hudud is being enforced before the conditions for its application are met.
The following are the preconditions for the implementation of Hudud laws:-
> Establish true Islam where society is pious and God-fearing
> Ensure the economic needs of the people are met
> Provide employment opportunities for all
> Reduce the income gap and ensure there is no poverty
In light of the above elucidation by Sheikh Qaradawi, can any State in Malaysia claim to have satisfied the preconditions in order to allow for the implementation of Hudud?
Professor Hashim Kamali an eminent Islamic scholar who currently heads the Institute of Advanced Islamic Studies ( IAIS ), has published a scholarly and detailed analysis of Kelantan’s original Hudud law as drafted by PAS which was passed by the Kelantan State Assembly in November 1993, from the perspective of the Quran, the Hadith and the opinions of the Companions of the Prophet. In his conclusion, the professor stated that “the Hudud Bill of Kelantan has failed to be reflective either of the balanced outlook of the Quran or of the social conditions and realities of contemporary Malaysian society”. He added that “the Hudud Bill exhibited no attempt to exercise Ijtihad over new issues such that would fulfil the ideals of justice and to encourage the development of a judicious social policy.”
A perusal of the 2015 Hudud Enactment of Kelantan reveals that it has retained the emphasis on punishment rather than repentance and rehabilitation as enjoined in the Quran.
Many other prominent Muslim scholars such as S. A. A. Maududi, Salim el-Awa, Muhamad al-Ghazali, Mustafa al-Zarqa and Cherif Bassiouni have opined that the application of Hudud as an isolated case without providing the necessary context and environment is not only unrealistic, but is more likely to induce the opposite result and frustrate, rather than satisfy, the Islamic vision of justice and fair play. In addition, they emphasise that the Hadith, as recorded in Sahih Al-Bukhari, and which is also a legal maxim, provides that Hudud must be suspended in doubtful situations.
We would also question the necessity of implementing Hudud in a multiracial and multireligious society like Malaysia. In 1957 the Conference of Rulers, the Government of the Federation of Malaya, comprising Umno, the MCA and MIC, and the British Government agreed to the enactment of the Federal Constitution of Malaya on the basis of the recommendations of the Reid Commission. Article 4 provides that the Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall to the extent of the inconsistency, be void. In addition, in July 1963, the Malaysia Agreement pertaining to the formation of Malaysia was concluded between the United Kingdom and the Federation of Malaya, North Borneo, Sarawak and Singapore . Prior to the signing of the Malaysia Agreement, North Borneo ( Sabah ) and Sarawak had negotiated a 20 Point Agreement and an 18 Point Agreement respectively , as the terms for their incorporation into the Federation. Point 1 of the North Borneo Agreement is on religion. It states “While there is no objection to Islam being the national religion of Malaysia, there should be no State religion in North Borneo and the provisions relating to Islam in the present Constitution of Malaya should not apply to North Borneo”. Similarly, Sarawak’s 18 Point Agreement stressed that “everyone shall be entitled to worship as he pleases”.
Therefore, should there be an attempt to amend the Constitution to pave the way for the implementation of Hudud, it would be a clear violation of the Agreement reached between the members of the Alliance party in 1957 and the Agreements in1963, with Sabah and Sarawak. We would strongly urge Parliament not to abandon the fundamental provisions of the Federal Constitution to enable the implementation of Pas’ Hudud law.
We fully endorse the view of Dr Chandra Muzaffar that there is nothing un-Islamic about the Federal Constitution. To quote Dr Chandra, “It emphasises the rule of law; it recognizes the equality of all citizens before the law; it upholds the freedom of religion; it enshrines individual liberties; it embodies the separation of powers among the legislative, executive and judicial arms of the State; it provides for the independence of the Judiciary and it allows the people to elect their leaders. That these are Islamic values and principles will only occur to those who appreciate the essence and substance of the faith.”
A multiracial country with an open economy like Malaysia cannot afford to alter the secular character of its Constitution to allow for the implementation of Pas’ Hudud enactment. Since Independence, this country has chosen the path of moderation. The Prime Minister has continued to steer the Government along this path and has launched the Global Movement of Moderates to show to the world that the country is committed to the principle of moderation. The imposition of Pas’ Hudud laws will signify to the world that Malaysia has abandoned the moderate path. We will be seen as a country governed by religious laws which are subjected to the vagaries of interpretation of the ulama who are also fallible human beings.
In light of the above, the G25 urges the Government to take a strong stand to protect the Federal Constitution as the supreme law of the land.
In response to The Star - DS Abd Hadi