Why does Umno now appear more receptive to Pas’ attempt to push through private members’ bills on the hudud? Francis Loh discusses the backdrop.
The Kelantan state assembly passed the Kelantan Syariah Criminal Bill
(II) to introduce hudud law in the state of Kelantan on 25 November
1993. This Bill was passed unanimously by all 36 State Assembly members,
including two from the Barisan Nasional. That was more than 20 years
ago.
But the law could not be implemented because it required an amendment
to the Federal Constitution. For under Schedule Nine of the
Constitution, “civil and criminal law and procedure, and the
administration of justice” – except in the case of “Islamic personal law
relating to marriage, divorce, guardianship, maintenance, adoption,
legitimacy, family law…” etc. – falls under the purview of the federal,
not the state government.
Back then, Parliament which, was dominated by Umno-BN, was not in favour of amending the Federal Constitution to facilitate the implementation of hudud laws by the Pas government in Kelantan. So the Pas government did not try to introduce a private member’s bill in Parliament then.
Admittedly, after its improved performance in the 1999 general elections, Pas tried to implement hudud laws in the states of Kelantan and Terengganu which had fallen under its control following the elections. This attempt led to divisions within the Barisan Alternatif (BA) coalition and ultimately to the withdrawal of one of its partners, the Democratic Action Party (DAP) from the BA. Perhaps drawing from this experience, Pas hesitated to push for hudud laws in the intervening years, until now.
Unconstitutional and discriminatory
However, then, like now, there occurred much public debate, resulting in much acrimony, over the matter. For the late Karpal Singh, the matter of introducing hudud law should not have arisen in the first place because Malaysia is a secular state. For Karpal, the Federal Court had ruled in 1988 (Public Prosecutor vs Che Omar Che Soh, with Tun Salleh Abbas presiding) that Malaysia operated on the basis of secular laws. Introducing hudud laws contradicted the present Constitution. Accordingly, the implementation of hudud laws required rewriting the entire Constitution. Karpal reiterated this stance in an interview, apparently his last, with The Rocket, his party’s organ, just before his untimely death.
Sisters in Islam (SIS) and other women’s groups then, and now, have argued that the implementation of the Kelantan Syariah Code, as proposed by the Pas government, infringes upon Article 8(1) of the Constitution, which declares that: “All persons are equal before the law and entitled to the equal protection of the law”. Further Article 8(2) provides that “there shall be no discrimination against citizens on the grounds of religion, race, place of birth or gender in any law…”. The presumption of zina (illicit sex) in the case of a woman who cannot find four male witnesses to back her allegation of rape is just one example which highlights how women can be discriminated against under the proposed Code. This certainly goes against the principle of justice that Islam (as in other revealed religions) categorically champions.
Medical practitioners have also been dragged into the debate this time. In reply to comments by Kelantan state authorities that surgeons would be responsible for amputating limbs as required once hudud is implemented, the Malaysian Medical Association (MMA) has unequivocally voiced its opposition to surgeons getting involved in the matter, stating that it goes against the Hippocratic Oath to which all doctors subscribe. The MMA’s position has been supported by Dr Ahmad Farouk, a surgeon and leader of the Islamic Renaissance Front. But groups like the Islamic Medical Association of Malaysia (Imam) and Ikram Health have come out to state that it is the duty of Muslim doctors to facilitate the implementation of hudud.
Non-Muslims also affected
The implementation of hudud law, we have also been told by its supporters, will not apply to non-Muslims. That might be so, theoretically speaking. In fact, however, there’s no doubt that the implementation of hudud laws will also impact upon the lives of non-Muslims who comprise about 38 per cent of the population, on several grounds.
What happens if both Muslim and non-Muslims are involved in a crime, say zina? Where will such a case be heard – in the civil or the sharia court? Will hudud law or civil law apply? Or two separate courts – which might result in two different court rulings and punishments? What kind of justice is this? Wouldn’t this go against the principle of equality before the law as enshrined under Article 8 of our Constitution?
And suppose it is decided that a crime is to be heard in the sharia court and there are non-Muslim witnesses to the crime. Will non-Muslim witnesses be able to testify on behalf of a rape victim? What would be the weight of the evidence presented by a non-Muslim witness? A male one? A female one?
Recent well publicised controversies the past decade over various personal and family matters involving Muslims and non-Muslims have not given confidence to non-Muslims that their lives will not be affected by the implementation of hudud laws either.
The break-up of couples originally married according to civil law, as a result of one spouse’s conversion to Islam – which has sometimes resulted in the conversion of minors to Islam without the knowledge and permission of the other spouse – comes to mind. The recent dispute between S Deepa, a Hindu, and Izwan Abdullah, the husband who converted, over custody of their children, and the forced abduction of one of them, on the basis of two differing court orders, resulting in the police refusing to act against one or another party, comes to mind.
And there have been cases of Muslim authorities carrying out ‘body snatching’ of deceased persons who when alive had reportedly converted to Islam without informing their families.
Regrettably, these incidents have caused the sense of religious suppression on the part of non-Muslims. For this reason, non-Muslims believe that the implementation of hudud law, like the increasingly frequent controversies mentioned above, will have spillover effects on non-Muslims too.
It follows that any state government or any party that intends to introduce hudud law is morally bound to engage all Malaysians – Muslims and non-Muslims alike – in public discourse and dialogue to convince them of the merits of hudud laws in a multicultural, multireligious society like ours. As well, we need to be informed whether and to what extent the implementation of hudud in countries like Saudi Arabia, Pakistan, Afghanistan, Sudan, or in the special region of Aceh in Indonesia and the 12 Sharia states of Nigeria have stopped crime in those places. After all, isn’t this the goal of implementing hudud?
In the event, hudud is only a small part of the Sharia; so why are local ulama putting heavy emphasis into implementing the hudud?
Why now?
Back to our original question: Why, therefore, is Pas pushing for the introduction of two private members’ bills in the Dewan Rakyat to implement hudud laws in Kelantan in 2014, over 20 years later?
In this regard, it is significant that such a major amendment to our Constitution is being facilitated by a private member’s bill in Parliament. Who remembers the last time Umno-BN, which still commands a simple majority in Parliament, and the Speaker, nominated by Umno-BN, allowed the Opposition to introduce a private member’s bill?
As far as we can recall, the Umno-BN majority and its nominated Speaker, have always dismissed previous attempts by any Opposition member of parliament to introduce a private member’s bill. Why, therefore, is Umno-BN acting otherwise now?
This is why we must look beyond the rhetoric and the semantics of the proposed bills themselves. The answer is in politics! Of Old Politics vs New Politics! Umno, steeped in ethnic-based exclusivist Old Politics, is goading Pas to jettison the Pakatan Rakyat’s New Politics, as contained in its Buku Jingga, so as to become more exclusivist and ethno-religious, like Umno itself! We must be clear about this!
New Politics has resulted in the virtual demise of the BN coalition, which performed poorly in the 2013 general elections. The BN polled fewer votes than the PR Opposition in GE13 and had to depend on its fractious BN partners in Sabah and Sarawak to win a majority of seats in Parliament. There is really no BN anymore, only Umno.
The writing was already on the wall with the arrival of Reformasi in 1998. So when Tun Abdullah Badawi took over as prime minister he introduced various reforms within Umno-BN as well as within his government. ‘Work with me, not for me!’ Time to change ‘the software’ instead of focusing on ‘the hardware’ of development like his predecessor did. Some of his predecessor’s mega projects which were benefiting certain cronies were set aside. Remember the ‘crooked bridge’ that was scrapped?
Abdullah also launched the Royal Commission of Inquiry to look into the workings of the Royal Malaysian Police. He called upon the civil service to serve the rakyat better and government departments to be more transparent. He launched several parliamentary select committees which went around the country to listen to feedback from the rakyat, prior to presenting the new laws concerned in Parliament. The media were also allowed to be more critical without threat of closure. And in contrast to his predecessor’s arbitrary proclamation of Malaysia as a Muslim country, Abdullah launched his notion of Islam Hadhari.
Before you knew it, Abdullah was out! He was accused of being manipulated by a group of Oxford boys located on ‘the 5th Floor’ of the PM’s Department in Putrajaya, of favouring his own cronies, and of being weak. Thrown out with Abdullah were the attempts to reform Umno, to make it more inclusive minded, more CAT-like (competent, accountable and transparent), as the opposition was attempting to be in Penang and Selangor.
Seen from this perspective, the results of GE13 – declining performances of the BN, slight advances by the opposition PR but not enough to allow it to displace the Umno-BN once and for all, was not unexpected. A stalemate of sorts resulted, stuck between Old Politics and New Politics.
Part 2 tomorrow: Umno restrategises – back to Old Politics
Dr Francis Loh has been president of Aliran since 2011. He was formerly Professor of Politics at Universiti Sains Malaysia.
This was less than two years ago – What has changed?
But the law could not be implemented because it required an amendment
to the Federal Constitution. For under Schedule Nine of the
Constitution, “civil and criminal law and procedure, and the
administration of justice” – except in the case of “Islamic personal law
relating to marriage, divorce, guardianship, maintenance, adoption,
legitimacy, family law…” etc. – falls under the purview of the federal,
not the state government. Back then, Parliament which, was dominated by Umno-BN, was not in favour of amending the Federal Constitution to facilitate the implementation of hudud laws by the Pas government in Kelantan. So the Pas government did not try to introduce a private member’s bill in Parliament then.
Admittedly, after its improved performance in the 1999 general elections, Pas tried to implement hudud laws in the states of Kelantan and Terengganu which had fallen under its control following the elections. This attempt led to divisions within the Barisan Alternatif (BA) coalition and ultimately to the withdrawal of one of its partners, the Democratic Action Party (DAP) from the BA. Perhaps drawing from this experience, Pas hesitated to push for hudud laws in the intervening years, until now.
Unconstitutional and discriminatory
However, then, like now, there occurred much public debate, resulting in much acrimony, over the matter. For the late Karpal Singh, the matter of introducing hudud law should not have arisen in the first place because Malaysia is a secular state. For Karpal, the Federal Court had ruled in 1988 (Public Prosecutor vs Che Omar Che Soh, with Tun Salleh Abbas presiding) that Malaysia operated on the basis of secular laws. Introducing hudud laws contradicted the present Constitution. Accordingly, the implementation of hudud laws required rewriting the entire Constitution. Karpal reiterated this stance in an interview, apparently his last, with The Rocket, his party’s organ, just before his untimely death.
Sisters in Islam (SIS) and other women’s groups then, and now, have argued that the implementation of the Kelantan Syariah Code, as proposed by the Pas government, infringes upon Article 8(1) of the Constitution, which declares that: “All persons are equal before the law and entitled to the equal protection of the law”. Further Article 8(2) provides that “there shall be no discrimination against citizens on the grounds of religion, race, place of birth or gender in any law…”. The presumption of zina (illicit sex) in the case of a woman who cannot find four male witnesses to back her allegation of rape is just one example which highlights how women can be discriminated against under the proposed Code. This certainly goes against the principle of justice that Islam (as in other revealed religions) categorically champions.
Medical practitioners have also been dragged into the debate this time. In reply to comments by Kelantan state authorities that surgeons would be responsible for amputating limbs as required once hudud is implemented, the Malaysian Medical Association (MMA) has unequivocally voiced its opposition to surgeons getting involved in the matter, stating that it goes against the Hippocratic Oath to which all doctors subscribe. The MMA’s position has been supported by Dr Ahmad Farouk, a surgeon and leader of the Islamic Renaissance Front. But groups like the Islamic Medical Association of Malaysia (Imam) and Ikram Health have come out to state that it is the duty of Muslim doctors to facilitate the implementation of hudud.
Non-Muslims also affected
The implementation of hudud law, we have also been told by its supporters, will not apply to non-Muslims. That might be so, theoretically speaking. In fact, however, there’s no doubt that the implementation of hudud laws will also impact upon the lives of non-Muslims who comprise about 38 per cent of the population, on several grounds.
What happens if both Muslim and non-Muslims are involved in a crime, say zina? Where will such a case be heard – in the civil or the sharia court? Will hudud law or civil law apply? Or two separate courts – which might result in two different court rulings and punishments? What kind of justice is this? Wouldn’t this go against the principle of equality before the law as enshrined under Article 8 of our Constitution?
And suppose it is decided that a crime is to be heard in the sharia court and there are non-Muslim witnesses to the crime. Will non-Muslim witnesses be able to testify on behalf of a rape victim? What would be the weight of the evidence presented by a non-Muslim witness? A male one? A female one?
Recent well publicised controversies the past decade over various personal and family matters involving Muslims and non-Muslims have not given confidence to non-Muslims that their lives will not be affected by the implementation of hudud laws either.
The break-up of couples originally married according to civil law, as a result of one spouse’s conversion to Islam – which has sometimes resulted in the conversion of minors to Islam without the knowledge and permission of the other spouse – comes to mind. The recent dispute between S Deepa, a Hindu, and Izwan Abdullah, the husband who converted, over custody of their children, and the forced abduction of one of them, on the basis of two differing court orders, resulting in the police refusing to act against one or another party, comes to mind.
And there have been cases of Muslim authorities carrying out ‘body snatching’ of deceased persons who when alive had reportedly converted to Islam without informing their families.
Regrettably, these incidents have caused the sense of religious suppression on the part of non-Muslims. For this reason, non-Muslims believe that the implementation of hudud law, like the increasingly frequent controversies mentioned above, will have spillover effects on non-Muslims too.
It follows that any state government or any party that intends to introduce hudud law is morally bound to engage all Malaysians – Muslims and non-Muslims alike – in public discourse and dialogue to convince them of the merits of hudud laws in a multicultural, multireligious society like ours. As well, we need to be informed whether and to what extent the implementation of hudud in countries like Saudi Arabia, Pakistan, Afghanistan, Sudan, or in the special region of Aceh in Indonesia and the 12 Sharia states of Nigeria have stopped crime in those places. After all, isn’t this the goal of implementing hudud?
In the event, hudud is only a small part of the Sharia; so why are local ulama putting heavy emphasis into implementing the hudud?
Why now?
Back to our original question: Why, therefore, is Pas pushing for the introduction of two private members’ bills in the Dewan Rakyat to implement hudud laws in Kelantan in 2014, over 20 years later?
In this regard, it is significant that such a major amendment to our Constitution is being facilitated by a private member’s bill in Parliament. Who remembers the last time Umno-BN, which still commands a simple majority in Parliament, and the Speaker, nominated by Umno-BN, allowed the Opposition to introduce a private member’s bill?
As far as we can recall, the Umno-BN majority and its nominated Speaker, have always dismissed previous attempts by any Opposition member of parliament to introduce a private member’s bill. Why, therefore, is Umno-BN acting otherwise now?
This is why we must look beyond the rhetoric and the semantics of the proposed bills themselves. The answer is in politics! Of Old Politics vs New Politics! Umno, steeped in ethnic-based exclusivist Old Politics, is goading Pas to jettison the Pakatan Rakyat’s New Politics, as contained in its Buku Jingga, so as to become more exclusivist and ethno-religious, like Umno itself! We must be clear about this!
New Politics has resulted in the virtual demise of the BN coalition, which performed poorly in the 2013 general elections. The BN polled fewer votes than the PR Opposition in GE13 and had to depend on its fractious BN partners in Sabah and Sarawak to win a majority of seats in Parliament. There is really no BN anymore, only Umno.
The writing was already on the wall with the arrival of Reformasi in 1998. So when Tun Abdullah Badawi took over as prime minister he introduced various reforms within Umno-BN as well as within his government. ‘Work with me, not for me!’ Time to change ‘the software’ instead of focusing on ‘the hardware’ of development like his predecessor did. Some of his predecessor’s mega projects which were benefiting certain cronies were set aside. Remember the ‘crooked bridge’ that was scrapped?
Abdullah also launched the Royal Commission of Inquiry to look into the workings of the Royal Malaysian Police. He called upon the civil service to serve the rakyat better and government departments to be more transparent. He launched several parliamentary select committees which went around the country to listen to feedback from the rakyat, prior to presenting the new laws concerned in Parliament. The media were also allowed to be more critical without threat of closure. And in contrast to his predecessor’s arbitrary proclamation of Malaysia as a Muslim country, Abdullah launched his notion of Islam Hadhari.
Before you knew it, Abdullah was out! He was accused of being manipulated by a group of Oxford boys located on ‘the 5th Floor’ of the PM’s Department in Putrajaya, of favouring his own cronies, and of being weak. Thrown out with Abdullah were the attempts to reform Umno, to make it more inclusive minded, more CAT-like (competent, accountable and transparent), as the opposition was attempting to be in Penang and Selangor.
Seen from this perspective, the results of GE13 – declining performances of the BN, slight advances by the opposition PR but not enough to allow it to displace the Umno-BN once and for all, was not unexpected. A stalemate of sorts resulted, stuck between Old Politics and New Politics.
Part 2 tomorrow: Umno restrategises – back to Old Politics
Dr Francis Loh has been president of Aliran since 2011. He was formerly Professor of Politics at Universiti Sains Malaysia.
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