JUNE 17 — I completely and utterly disagree with and protest the latest statement of the G25 Malaysia issued by Tan Sri Mohd Sheriff Mohd Kassim in the Malay Mail Online on 13 June 2016 on the tabling of the amendment to the Syariah Courts (Criminal Jurisdiction) Act 1965 recently (Focus on reforms, not political hudud, The Malay Mail Online, 13 June 2016).
According to this group of so-called eminent Malays comprising of former high ranking civil servants, we should be focusing on reforms, not political hudud.
The statement itself would appear to be a truncated version of Tan Sri Sheriff’s letter to the Star on the same day (A matter of grave concern, The Star, 13 June 2016).
In the letter, Tan Sri Sheriff lauds the initiatives of civil society in promoting reforms to strengthen national governance in view of what is, in his words “the erosion of institutional independence, money politics and unfair election practices, corruption and mismanagement of the country’s natural resources and public finance and violations of human rights”.
Among the initiatives of civil society lauded by him include regulation to promote transparent and ethical political financing, empowering Parliament to play a role in providing checks and balances on the functions of government, the creation of an independent office of the Public Prosecutor separate from the Attorney-General to ensure integrity in law enforcement, and lastly reforming Muslim family law to facilitate access to justice for wives and children affected by bitter divorce proceedings.
These, according to Tan Sri Sheriff, are the initiatives we as a nation should focus on, instead of wasting time on hudud, which is supposedly unconstitutional as Malaysia is, in his words, a secular nation.
The above, besides being a textbook example of a red herring argument, ignores the fundamental fact that hudud, far from being an initiative doomed to failure on account of its supposed unconstitutionality or a mere distraction from more pressing issues, is in fact yet another initiative of civil society geared towards the betterment of our nation. In reforming our criminal justice system by introducing hudud elements therein, the system is made more effective in deterring crime and promoting justice for victims of crimes in particular and society at large in general.
It is commonly accepted wisdom that tough penal laws deter crime significantly, and hudud even more so. For evidence of this one need not look further then other countries who have implemented hudud, such as Saudi Arabia, where it is well known and undisputed that crime is and remains at extremely low levels compared with other countries due to the presence of hudud.
How could hudud be anything other than a civil society initiative? It is certainly not a proposal of the Umno-led BN federal government, which has maintained strong opposition towards the introduction of hudud as championed by PAS, an opposition party which save for a brief stint in the 1970s has never been part of the federal administration.
This has not stopped others from supporting hudud, as the people of the state of Kelantan have when they elected that party to power in their state in 1959 and again in 1990. In spite of political and economic blockades imposed by the federal government led by former Prime Minister Tun Dr Mahathir Mohamed in the 1990s to frustrate the implementation of hudud in Kelantan, the people of the state are largely unwavering in their support for Islamic criminal justice.
This phenomenon has now spread across Malaysia, as a recent poll taken by the national debater Syed Saddiq has indicated an overwhelming majority of Malaysians (83 per cent) are in favour of the implementation of hudud, regardless of their state of origin. Clearly, hudud is one of the many reforms desired by civil society along with the various other matters enumerated by Tan Sri Sheriff in his statement and letter mentioned above.
Yet rather than see this phenomenon for what it is, for reasons known best only to them, Tan Sri Sheriff and his group of 25 former civil servants would rather interpret this general desire for hudud as hindering, rather than bettering the legal and political mechanisms in place within our society.
The whys and wherefores postulated by this group have time and again been flimsy at best and whimsical at worst.
This so-called eminent group of 25 via Tan Sri Sheriff, who claim to support democratic governance, act in defiance of democracy by choosing to repeat yet again the tired, discredited argument that Malaysia has a secular legal character, although this has been refuted successfully numerous times by law practitioners such as Aidil Khalid, who is a fellow member of the Malaysian Bar.
So discredited is the argument that there is a secular underlying basis for Malaysia that even the Bar Council in its press release of 8 June 2016 referencing the abovementioned amendment Bill made no mention of that argument, instead focusing on equality concerns, thus tacitly acknowledging the futility of the secular argument. If the Bar Council, consisting of professionals learned in the law, can acknowledge that we are not in fact secular, it is high time others, including the G25, recognise this as well.
Further, Tan Sri Sheriff makes an empty claim in his statement and letter that “a fundamental principle in all constitutional democracies is the separation of religion from the nation state”.
This claim is not backed by any legal nor jurisprudential basis.
It is a rather narrow view that would seem to be based primarily on the Constitution of the United States, and ignores the fact that many constitutional democracies such as the United Kingdom, for example, does not have separation of religion from state. In the United Kingdom, the Church of England is headed by the British monarch, and Measures promulgated by the General Synod of that church has legal effect similar to any Act of Parliament under the Church of England Assembly (Powers) Act 1919.
How could any secular state allow for religious measures to have legal effect? Even Malaysia’s Constitution provides for laws based on the injunctions of Islam, as enumerated by Item 1 of the Ninth Schedule to our Constitution and yet we are a constitutional democracy. This in and of itself puts paid to the veracity of the claim made by Tan Sri.
But it is not just the United Kingdom and Malaysia that does not separate state from religion.
Yet another example is Pakistan, which is a democracy and where hudud has been introduced and implemented successfully since 1979 in the form of four hudud ordinances on theft, fornication, adultery, rape, false accusation of adultery and alcohol consumption.
In contrast to the oft repeated assertion by the G25 that hudud is unjust as “Muslims are … punished cruelly on personal sins in the syariah legal system,” as written by Tan Sri Sheriff in his statement above, it has been acknowledged that throughout the enactment of hudud in Pakistan, no one has ever been subject to amputation or stoning under the law due to the high burden of proof required for conviction, which is also a requirement of hudud.
Tan Sri writes that the G25 dissent against all forms of injustice and discrimination, including women and minorities, yet in Pakistan, the notion that hudud discriminates against women was also found to be false, with noted academic Charles Kennedy presenting findings in his 1996 book Islamization of Laws and Economy that as much as 84 per cent of convictions under hudud law in Pakistan were against men, and thus concluded that gender discrimination concerns were fundamentally flawed.
As for minorities, the Constitution of Pakistan guarantees the ways of life and the rights and freedoms of non-Muslims. All this goes to show that if Pakistan can be a successful democracy that protects its women and minorities, yet still implements hudud successfully, why can’t we?
Bad governance, according to Tan Sri, has become a grave concern in our country as evidenced by the 1MDB scandal and he calls for structural reforms to counter this, yet implementing hudud is not seen by him as part of those reforms, as it should be.
Again, Pakistan is a fine example in this area with its Enforcement of Shar’ah Act 1991, section 11 of which provides that the state shall take legislative and administrative measures to eliminate bribery, corruption and malpractices as well as provide for exemplary punishment for such offences.
Further, section 21 of the Act provides that laws shall be exclusively enacted by Parliament and no law shall be deemed to have been made unless it is consistent with the manner proscribed by its Constitution. Is this not in line with the desire of civil society to rid corruption and strengthen our parliamentary institutions to provide effective oversight on the government, as championed by Tan Sri himself in his letter mentioned above?
All in all, the introduction and implementation of hudud in our criminal justice system, along with the various other institutional reforms mentioned by Tan Sri Sheriff of the G25, is in fact also a demand of civil society, and is aimed at making Malaysia better politically, economically as well as socially.
Hudud, by deterring crime, also strengthens the human rights of everyone who lives in our polity, whether majority or minority. As such, it is rather disingenuous to suggest, as would seem to be the case with the G25 as well as many other quarters that it is anything otherwise.
It is high time we cease looking at hudud as something to be sidestepped and prevented, and allow its introduction as a reform of our penal laws for the better, along with other institutional reforms mentioned by Tan Sri.
For just because we may personally disagree with a certain course of action such as the implementation hudud does not mean that it is not a desire of civil society, along with other reforms. Let us function as the democracy we claim to be and allow its implementation. It is only then that will we move forward as a nation.
* Kee Mohd Thariq K Zainal Abidin is a lawyer and a member of Young Professionals, a non-governmental organisation formed for the purpose of defending the supremacy of constitutional ideals in the determination of public affairs.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.
