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The Star - Sharing the Nation - The thorny issue of hudud (12 June 2016)
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The thorny issue of hudud
by Zainah Anwar


PAS’ hudud always been a divisive issue which led to the breakup of Pakatan Rakyat. Now, it is a bigger threat.

CABINET Ministers who support the amendments to the Syariah Courts (Criminal Jurisdiction) Act 355 may continue to claim that it is not the prelude to enforcing hudud in Malaysia. But as far as Datuk Seri Abdul Hadi Awang and PAS are concerned, they have checkmated Umno.

It is the gateway to implementing hudud in Kelantan that they had strategised for – without having to amend the Federal Constitution. In October 2011, PAS set up a technical committee on hudud and appointed a Constitutional lawyer to prepare a working paper.

The strategy was to amend federal laws which needed only a simple majority, rather than going for a Constitu­tional amendment which would need a two-thirds majority which they knew they could not muster. In April 2014, the new Kelantan Menteri Besar announced the plan to table two Private Member’s Bills to enable the Syariah Criminal Code II (1993), the so-called hudud law of Kelantan, to be enforced.

The tabling of the amendment to Act 355 to remove the limits on punishments that the Syariah Courts can impose will now open the way for any state in Malaysia to enhance the punitive powers of the syariah system. Currently, Syariah Courts can impose a maximum of three years’ imprisonment, a fine of RM5,000 or six strokes of the rotan.

This amendment now removes this jurisdictional limit and replaces it with “any sentence allowed by Islamic law” other than the death penalty. This will then enable the Kelantan state government to impose hudud punishments of up to 100 lashes and amputation of hand and foot. But this cannot be satisfactory for PAS and Abdul Hadi in particular, the hudud ideologue of the party.

Not being able to stone Muslims to death for adultery and sodomy, and cruxify them for robbery means that major provisions of their hudud law are being excluded. For the amendment to Act 355 is not enough to deal with the issue of conflict with Federal laws.

States cannot enact laws to punish Muslims on matters included in the Federal List. Theft, robbery, rape and sodomy (carnal acts against the order of nature) are included in the Penal Code, a federal law. There is also a long list of offen­ces in the hudud law of Kelantan which provides for other forms of punishments such asta’zir (punishment at the discretion of the judge or the ruler), qisas (law of retaliation – an eye for an eye) and diyat (monetary compensation) for homicide, sexual gratification between females, sex with a dead body, sex with an animal and causing bodily injury.

So the next step, as announced by the Kelantan Menteri Besar in 2014, will be to introduce another Private Member’s Bill to pass a new law under Article 76A of the Federal Constitution which allows Parlia­ment to grant power to authorise the State Legislatures to make laws on a matter enumerated in the Federal List.

And hey presto, so the thinking goes, they will get the simple majority of 112 votes from among the Muslim MPs and the enactment of PAS’ hudud in all its gory glory can be enforced in Kelantan, as well as in other states if they so choose to follow.

So dear Malaysians, brace yourself for this gradual approach to hudud that PAS has promised and that Umno is complicit in. Umno, desperate for the support of the Malay vote bank and to woo PAS into its arms, has welcomed this PAS plot in spite of opposition from its key partners in the Barisan Nasional.

As early as 2014, MCA, Gerakan and PBB had stated publicly that they would oppose any such effort to introduce hudud through the back door. Yet in an unprecedented move, the Umno Minister in charge of Parliament moved a motion pushing Abdul Hadi’s Private Member’s Bill to the top of the agenda, taking precedence over government business.

Not surprisingly, this constituted an insult to Umno’s partners in the Barisan. They were stunned that Umno had pre-emptively supported the Islamist opposition party to unleash the hudud law in Kelantan, a major turnaround in policy, after decades of opposing many earlier attempts by PAS. Leaders from MCA, MIC, Gerak­an, PBB, SUPP, PRS, LDP have all announced that they will not support the Bill, which will be debated in the October parliamentary meeting. Some have threatened to resign should the Umno support prevail.

In Sabah and Sarawak, a citizens campaign has begun calling for a renegotiation of the Federal Consti­tution as they saw this attempt to turn Malaysia into a theocratic state a betrayal of the liberal and secular Federation they had signed up for. The PAS obsession with enacting its hudud law as a measure of its commitment to Islam is puzzling, if not downright opportunistic.

Nowhere in the Muslim world is there another Islamist party as dogged as PAS is on this matter. Even Arab countries that went through a revolution that saw Islamist parties winning power had no interest in even debating the viability of such a law in the 21st century. The record of failure, injustice and abuse in countries such as Nigeria, Pakistan, and Sudan, which implemented hudud opportunistically to prop up unpopular ruling parties, is well documented at the national and international levels.

And Malaysia, an upper middle income country, is willing to join the ranks of these countries which are at the bottom of the ladder? A country that touts itself as the leader of a global movement of moderates does not move forward by introducing a law that imposes punishments considered as forms of torture, cruel, inhumane and degrading treatment.

It is not for nothing that many Malaysians revolt at the idea of these forms of hudud punishments, whether they will be personally affected or not. Already the record of enforcement of existing Islamic laws on the rights of women, citizens of other faiths and marginalised groups have wrought fear and distrust of the syariah system, what more further expansion that empowers it to introduce more draconian laws and forms of punishments.

Of even more concern is the fact that the complexity and implications to nationhood, nation-­building, race relations and racial politics have obviously not been thought through by those pushing for the enforcement of hudud law. Neither have the impact on social values, public interaction and culture of violence and misogyny, and of course, not least the ensuing conflict with the Federal Constitution and all its ensuing complications.

Until today, this government has not had the political will to resolve the simple area of conflict over conversion of children when a party to a marriage converts to Islam. How does it plan to resolve the even more complex contestations literally over life and limb under the hudud law? I bet no one has put thought into it.

It is clear that short-term political gain overrides every other consideration. For how does one explain this obsession with such a punitive understanding of Islam over showcasing the beauty and compassion of the religion to draw more people to the faith and build confidence that it can indeed deliver justice? This obsession with hudud is obviously not about Islam.

How PAS and Umno can think they can win public confidence boggles the mind. The hudud law has always been a divisive issue. It led to the break-up of Pakatan Rakyat, and now it threatens to break up Barisan Nasional. What really is the game plan Umno is playing, then? An end to the consociational democracy we have lived with since Indepen­dence?

It is hard to believe that the Umno leadership did not envisage the anger and outrage from its partners in the coalition. Or is it so accustomed to getting its way that it thinks it can override any opposition and bludgeon the other leaders into acquiescence yet again? Is Umno ready to jettison its weakened Barisan Nasional partners in the Peninsula and form a new alliance with PAS?

But they can’t possibly think Sabah and Sarawak would be happy with such an arrangement. The outspoken and popular PBB President, Tan Sri Adenan Satem, resolutely pursuing a multi-racial agenda in Sarawak, has been unequivocal in his rejection of the PAS initiative.

Even if Umno can muster a Malay majority to form a government, it can’t possibly think it can run a multi-ethnic and multi-religious country through hegemonic control by one race and still be able to deliver stability and prosperity, and win a vote of confidence from the business and international communities. That was never and will never ever be the recipe for success for Malaysia.

http://www.thestar.com.my/opinion/columnists/sharing-the-nation/

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