Islamic Hudud Law Dialogue
Theme: The Syariah Penal Code Application in the Modern World
September 29, 2002 (8:00 pm to 11:45 pm)
Angkasa Conference Hall, Kelana Jaya
Organized by Malaysia Islamic Society of North America Alumni (MISNA)
The dialogue was intended to:
- Foster a greater understanding of the Islamic Penal Code among various races and religions in Malaysia;
- Provide a balance view on the controversy surrounding the recent move by the Terengganu State Government to adopt the Islamic Code;
- Allow non-Muslims especially and Malaysians generally to express their views on this subject directly and freely; and
- Give an objective picture of the philosophy and basic ideas behind the Islamic Penal Code.
The panelists were:
The Honorable Tun Salleh Abbas – State Exco Member of Terengganu (Former Lord President of Malaysia)
Dr Dzulkifli Ahmad – Director of PPP and Researcher.
YB Ustaz Nasaruddin Mat Isa - Member of Parliament for YAN (Absent)
The two panelists basically touched on the following areas:
- The constitutionality of Hudud Law.
- The consistency of Hudud and how it meets the need of the modern world.
- The question of whether an Islamic State is a theocratic state.
- Why Muslims are passionate about the implementation of Hudud.
- The harshness of Islamic punishment and where in Islamic history was the law ever imposed on the innocents.
The Hudud Law was equated to the Mosaic Law of the Old Testament by Tun Salleh Abbas. He also claimed that 90 percent of Malay Muslims in Kelantan & Terengganu wanted Islamic law to be implemented. However, the enabling power for implementation is in the hand of the Federal Government, therefore the Parliament should pass the enabling act under Article 76 in order not to deny the Muslims their religious duties, and so deny their right to religious liberty as provided in Article 11. In fact, by not allowing the implementation of Hudud, their constitutional right has been denied, claimed Tun Salleh Abbas.
Hudud and Qisas do not replace the existing law. Acts like fornication, adultery, intoxication, false accusation are not deemed as crimes in the present Malaysian Penal Code. Zina does not contradict the Federal law because the punishment is not provided by the Constitution.
Theocracy is a western terminology. It means clerics enforce God’s sovereignty and become God’s spokesmen. The power rests in clerics acting on behalf of God. However in Islam, men are vicegerent, not spokesmen of God; men cannot promulgate laws in the name of God. The Islamic form of government aspired by PAS emphasizes shura, parliamentary system, and therefore there will never be supremacy of ulama, and thus it is not theocratic.
Even though the injunction of Islamic law is marginalized by the present government, the implementation of Islamic law is incumbent upon Muslims because Islam is a way of life; it does not confine to personal aspects, rituals and mosques only. PAS wants the law to be applicable to the society at large. The Shariah law is the guardian of life, it is the expression of the entire moral precepts of Islam. It is much needed for a clean and purified society. A panelist believes that those whose spouses cheated on them would want to invoke the Hudud law.
The question of harshness is irrelevant because it depends on individual value judgment. Zina protects the morality of society. It is a punishment prescribed by the Quran and imposed on Muslims only. In order to avoid punishment under Zina, it is better for those who commit adultery to keep it secret so that society will not be affected. The cases of rape are trial under taksir.
In regards to non-Muslims, the choices of punishment are given to the defendant. PAS government adheres to the constitutional rights of religious liberty because it is also stated in the Quran. Based on Article 11 of the Federal Constitution, non-Muslims should be given the rights to exercise their respective laws in accordance with their respective beliefs.
In regards to national enactment, PAS government is realistic in only asking for the mandate to implement Islamic law at least in their governing states on those who ask for it, to reinstate democracy and justice.
In regards to apostasy, there is indeed no clear punishment in the Quran, but it is clearly stated in the Hadith. Apostasy is an act of transgression against God - just as treason is an act of transgression against the state - which invokes the death penalty. Therefore, non-Muslims must think of all possible consequences before converting to Islam, not simply for the sake of "love." While the Quran may not have clear prescriptions on punishment for apostasy, punishment for Zina is 100 lashes instead of stoning to death. The panelists argue that Muslims must obey whatever is said by the prophet in the Hadith because the Quran says so.
In responding to the comment that the phrase "to manage its own affair" in Article 11 does not mean punishment, Tun Salleh Abbas claimed that the phrase "own affair" meant "own religion which includes all laws that make up a Muslim society."
On the whole, the Islamic Shariah law in Kelantan and Terengganu is consonant with the Federal Constitution. The implementation of Islamic law by PAS is not a political position but a religious commitment. Nevertheless implementation is possible only when Parliament passes the enabling act.
The dialogue focuses on the religious rights & duties of Muslims based on the religious freedom provided by Article 11. The explanation of the panelist seems far-fetched in order to defend the imposition of the present Islamic criminal code in Kelantan and Terengganu.
How can one not weigh between the injunctions in the Quran and that of the Hadith? In the case of zina, the law of God (the Quran) prescribes punishment of 100 lashes, while the law of man (Hadith) dictates death penalty by stoning. The PAS Government has conveniently taken up the law of man while at the same time claiming the supremacy of the law of God.
If all religions were to be given rights to implement their own laws, how can there be consistency, equality and justice when the same crime is penalized under different criminal codes with diverse degree of severity?
Panelists were not able to respond to the question on the assurance to the non-Muslims under the PAS Government. Dr Dzulkifli claimed that it would be not be fair to press PAS for an assurance as the existing government itself could not give any assurance. They were also not able to give a clarification on a question challenged by one participant that Barisan Alternative won over Kelantan & Terengganu on the grounds of the people’s desire for a just and clean government instead of the crying for Islamic law.