PAS insistence on tabling the hudud bill in the Kelantan state assembly, as expected, has riled the party’s Pakatan Rakyat partners, particularly DAP.
But whatever the politics of this issue, to the experts what matters is the purpose. As of now, it is not quite clear what the bill, which sought to implement the hudud or Islamic criminal laws in the state, sought to do. There is the general view that criminal law falls under federal jurisdiction.
Even if Kelantan subscribes to the idea that hudud could be implemented within the existing framework – namely the Islamic criminal law that falls under the state jurisdiction – there are certain hurdles that need to overcome first, including the increase of jurisdiction of the syariah courts.
At the moment. their powers are not enough to deal with hudud offences. Of course all these presuppose that the ideological bar – namely the secular nature of the Constitution as alleged by the DAP – does not hold water.
In other words even assuming that hudud could be implemented by the states, they could not afford to ignore the federal authorities under which agencies, such as the police force, rest. Needless to say necessary amendments to laws pertaining to the syariah court jurisdiction as well as certain provisions of the Penal Code and so on can only be done by federal parliament.
Such makes one wonder if Kelantan Deputy Menteri Besar Datuk Mohd. Amar Abdullah was really serious when he claimed that hudud was more important than capturing Putrajaya. Apparently he did not see federal power as something crucial to make his hudud dream a reality.
And this is something that has made the partners – namely PKR and DAP – looked down upon the state’s proposed tabling. In short, the partners did not consider the proposal by Kelantan as something logical let alone viable.
It appears that outside Kelantan, not everybody in PAS agrees with the hudud proposal. It has emerged that the state government pursued the matter in secrecy from the party’s central authority.
Such was the impression when on Dec 23, it was reported that some of central committee members, most of whom were either Erdogans or Anwarites or simply the progressive wing, claimed that the party has never been consulted on the proposal.
Although this was followed by a curious statement by Datuk Mustafa Ali, the secretary-general who leans more towards the conservative wing led by party president Datuk Seri Abdul Hadi Awang, the impression remains.
One may add that immediately after former MB Datuk Nik Abdul Aziz Nik Mat left office in the aftermath of the GE13, the new state government led by Datuk Ahmad Yaakob admitted that hudud could not be implemented within the existing framework.
Whatever the truth the problem with PAS’ hudud vision is more than just the party’s inconsistency and flip-flopping. The major problem with PAS is that they never argued the case for hudud implementation in the light of the existing constitutional scheme.
In fact PAS used to ignore the constitution. This began to change and the party adopted a more constitution-friendly as more and more professionals, including lawyers, joined the party after the 1998 Reformasi.
Nonetheless, this faction has yet to take full control of the party. Hence the weird views put up by Mohd Amar, including the use of guillotine as well as using the service of medical doctors to cut off limbs under hudud law. The latter view was rebutted strongly by the Malaysian Medical Association (MMA).
Admittedly one of the reasons which made the hudud implementation looks viable is the success of Islamic banking and Islamic university. As the two Islamic projects, like hudud, have their roots in Islam, it is argued that there is no reason why the latter could not be implemented in Malaysia.
For the record both Islamic banking and Islamic university, just like hudud today, used to be seen as not viable for the simple reason that they were against the existing conventional systems.
Be that as it may, one has to bear in mind that those two major Islamic projects were essentially top-bottom ones imposed during Mahathir Administration. It would be recalled that the two Islamic projects were meant to boost the Islamic credentials of the ruling Umno.
Whatever the intention behind them, they did not face problem as the ruling party wields an overwhelming majority in parliament. This has made it easier for Umno to make the necessary changes to the prevalent laws and practices to facilitate something which was previously considered odd and impossible to do.
Such a prerequisite is not at the disposal of PAS at the moment. And this is actually the problem. Funny enough, Mohd Amar has denied the importance of the key factor, namely winning the federal power.
And strangely enough he has counted the support of the party’s main nemesis, Umno. This is indeed mind-boggling as it underlines the rejection, not only the constitutional system but also the political system.
Mohd Amar seems to have forgotten that hudud has never been in Umno’s agenda. Prime Minister Datuk Seri Najib Razak has made that clear. Religious Affairs Minister Datuk Seri Jamil Khir may have impressed Mohd Amar but the number one Umno leader is still not on the same wavelength with PAS.
Up to now, Jamil has not been vocal on the hudud implementation. On the other hand, there are many Umno leaders who are more in tune with Najib. Tengku Razaleigh Hamzah has stated that hudud would bring disunity among Malaysians. Datuk Nur Jazlan Mohamed said that if Umno wanted to do it, the party would have done it long time ago.
Surely, the Kelantan Deputy Menteri Besar and all the hudud proponents must have realised by now that their proposed bill is unlikely to get the nod from Umno.
Dr Abdul Aziz Bari is formerly IIUM law professor who now teaches at Unisel. He is also a Senior Fellow at think tank IDEAS.
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