Hudud: The road never taken — Azlan Abdul Razak

MAY 15 — When Kelantan first exhibited her zeal in implementing Hudud law through the passing of Kelantan Shariah Criminal Bill (H) 1993 the same year and Terengganu in 2002, we knew that something was wrong. This law, as enacted, required a woman who reported that she had been raped to produce four male witnesses in support of her case, failing which a charge of false accusation resulting in 80 lashes on conviction would ensue.

When the self-same legislation subjected a pregnant rape victim to the irrefutable presumption of zina (illicit sex), we were convinced that it was not Islamic.

When women were not accorded equal right to be a witness of fact as men under their version of Hudud law, one would innocuously think that God would not have had to create women otherwise.

When all the panoply of other laws was enacted at the risk of undermining the worth of women in the name of religion, we defended our faith against this bastardised understanding, thinking that God was not God if God was partial and sexist.

Now that the recent news of the most alarming nature had caused an ephemeral yet massive political ripple in Terengganu with the sudden swing of allegiance, one would fear that the otherwise would-be ruling party of the day would resume its fetish for Hudud law that it once relished in then.

Constitutional Cleavage Writ Large

The Federal Constitution, through Article 76A permits the Federal parliament to expand and extend the legislative power of the State to enact laws on matters that are contained in the Federal List.

While the proponents of Hudud law rightly argue that the realisation of Hudud has formidable legal basis by virtue of the aforementioned authority, it is argued that its ramification would be constitutionally macabre and that its enforcement will only open to a door of a much confusing constitutional maze.

Assuming the Private Member's Bill on hudud succeeds, thereby realising the possibility of its enforcement on Muslims, would that not then pose a serious constitutional issue of flagrant violation of Article 8 of the Federal Constitution on equality before the law in the instance where the alleged perpetrators hail from different faiths and are thus tried in different sets of proceedings?

The drafters of the Kelantan Code had, in 1993, declared that a Muslim who was convicted under it would not suffer from another trial for the same offence under the Penal Code. Such unfounded guarantee notwithstanding, it must be borne in mind that the decision to prosecute or to discontinue the prosecution rests with the discretion of the Public Prosecutor by virtue of Article 145 of the Federal Constitution.

It is worth noting that this gives rise to the double-jeopardy dilemma in the event that the Public Prosecutor sees fit that the alleged perpetrator be charged in the civil court.

Also, with the implementation of the Hudud law as a creature of Article 76A of the Federal Constitution crystallised through its Private Member’s Bill, it is submitted that Schedule 9, List II, Paragraph 1 that serves as a cauldron of authority for the Shariah Court to exercise its jurisdiction to the exclusion of that of the Federal List would be of no practical relevance, assuming the working of Article 76A of the Federal Constitution overrides the [in]famous Schedule 9, List II, Paragraph 1 of the same document.

At this juncture, a judicious wisdom of the Federal Court is of crucial importance. In exercising its power under Article 130 of the Federal Constitution, the Federal Court has the opportunity to clear the air once and for all with considerable regard to the interest of the public on the constitutional workability of Hudud law.

On the same score, it remains the writer’s personal question if the Federal Court would be empowered [and emboldened] to declare a provision in the Constitution unconstitutional by reason of contradiction, in both spirit and essence, with another provision of the same sacred document, i.e. the working of Article 76A itself as against other provisions on the fundamental rights. It is asserted with the greatest respect that any legislative means must be subordinate to the fundamental rights.

One may conveniently promise earth, moon — the whole kit and caboodle, but in the end, the capability to honour such promise is not a question of choice. It is, and always has been a question of legal authority. 

The recent rekindled passion for Hudud law after its comforting hiatus has had many of human rights advocates standing akimbo in protest against such move. With so many proposed laws that are discriminatory against women, one would be pardoned in mistakenly believing that imminent harm might betide those subscribing to the laws of God. The prevailing fear lies not in the religion itself. Rather, such perennial concern is founded upon the version of which the politically interested stakeholders are keen on defining Islam to pander to their political whim and fancy.

Section 9 of the Terengganu bill which stated that a woman who alleged rape could be guilty of making a false accusation (qazaf) and be whipped 80 times if she could not prove otherwise.

In this regard, it appears most surprising for many that PAS who, in its constant claim to be the devoted champion of Islam takes a complete turn and decides to define the Koranic verse with respect to false accusation in the most ruthless manner in that it imposes the onus on the rape victim to prove her case against the accused malefactors by demanding four male Muslim witnesses to buttress her allegation. Not only does such selective reading run counter to the true spirit of Surah An-Nur 24:4 which principally seeks to protect the rape victims from slanderous allegation on adultery, it also, to a larger extent, implies that half of the population in Malaysia who are not Muslims will not be qualified to be a witness of fact.

Similarly, nothing could help allay one’s fear when looking at Section 46 (2) of the Kelantan Enactment that states that “in the case of zina, pregnancy or delivery of a baby by an unmarried woman shall constitute evidence on which to find her guilty of zina and therefore the hudud punishment shall be passed on her unless she can prove to the contrary”.

In such situation, the role of the State, instead of protecting the interest of the citizenry by initiating the proceeding the perpetrators in defence of the rape victims turns into charging these unfortunate women with a crime of illicit sex, burden of which lies in the shoulder of the women to prove otherwise.

The appreciable contradiction of these man-made provisions with the actual letter and spirit of the divine text falls flat on the face of PAS leaders who are in their persistent effort in instilling fear by using religion to sanctify their political chicanery. It is already an open secret that Allah and Islam are often used as a masquerade to induce the people into unnecessary silence and blind submission.

If these words of God are interpreted only to exacerbate the already growing ember of injustices among human beings, let us all venture into a guess and tell who the real culprit is — who deserves the unmitigated wrath of God for betraying her; the one interpreting them, or the one fighting against them?

It is neither Allah nor Islam that we must stand up against in Hudud. Rather, it is the distorted version of Islam silhouetted against the façade of religion that all must rally together and continue to battle on.

It is conceivable that no change of legal framework is necessary simply because the current justice system is allegedly replete with flaws.

Even if it is, are we all not taught to not throw something away without fixing it first?

Let us all join the force to bring about compassion, mercy, and justice. That’s part of Islam too. Forget that not.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malay Mail Online.