SIDE VIEWS
20 questions you’re too afraid to ask about hudud – Eric Paulsen
As you may have heard, PAS in all its wisdom has decided that now is the right time to push for hudud law in Kelantan, never mind the fact that Kelantan remains one of the most socially and economically disadvantaged states in Malaysia.
Hudud is part of the Islamic criminal law that provides for the harshest punishment imaginable and Kelantan’s version includes stoning to death (with stones of medium size, no less), death followed by crucifixion, amputation of limbs and whipping.
Needless to say, such punishments are out of place in this day and age or in any modern and democratic society as they constitute torture, cruel and inhumane punishment.
While PAS and supporters of hudud have no such concerns and are blindly confident that all will be well with its implementation, even though there is no basis for the assumption that it would work in Malaysia, just as it has not worked in all the countries that have implemented hudud – Sudan, Somalia, northern Nigeria, Afghanistan, Pakistan – just to name a few. In fact, the reverse is true, hudud is a byword for injustice done in the name of Islam especially against women and girls.
Leaving aside whether the conditions are right under Islamic jurisprudence for hudud to be implemented, whether it would be constitutional or desirable in a country like ours, other Malaysians have questioned how fair, just and practical it would be for hudud to be plunked down in Kelantan while the rest of the country or non-Muslims are supposed to remain unaffected.
We have therefore compiled 20 most sought after questions for PAS - in no particular order of importance of course - and we do hope PAS will oblige us with proper answers rather than invoking God's name which usually ends all further discussion.
1. Can hudud be implemented in a situation where there is a huge disparity between the haves and have nots, between the super-rich like Syed Mokhtar al-Bukhary, Mokhzani Mahathir, Vincent Tan, Ananda Krishnan and the homeless and destitute, when Malaysia’s Gini Coefficient Index (which measures the degree of inequality in the distribution of income) is the 3rd most unequal nation in Asia?
2. Can hudud be implemented in a situation where the rich and powerful usually escape the rule of law? When was the last time a VVIP was convicted and actually spent time in jail? Further, can hudud exist when Muslim VVIPs still sit on the board of directors of Genting Berhad, own shares in San Miguel brewery or own the Hard Rock Café chain in the country?
3. Will hudud (like the present Shariah laws) be applied selectively and have a disproportionate effect on the poor and weak while the rich and powerful can escape punishment? For example, will only ordinary Muslims and Indonesian migrant workers be whipped for consuming alcohol or will Umno ministers, members of the royalty and their children, and Muslim tourists from the Middle East, also be whipped?
4. With so much dissatisfaction in the present Shariah Courts and law enforcement (especially nafkah, or maintenance, of abandoned wives and children), have the authorities taken into account what would happen if they wrongfully sentence an innocent person to have his hand or leg chopped off or stone an innocent woman to death?
5. Can hudud be applied only to Muslims while non-Muslims are subjected to different laws? Is it fair if two persons are arrested in Kelantan for motorcycle theft, one a Muslim has his hand chopped off while the non-Muslim is imprisoned for a year?
6. Can hudud be applied only in Kelantan while the rest of the country applies the existing criminal law? Is it fair if two Muslim men are arrested for motorcycle theft, one in Kelantan and the other in Selangor, the man in Kelantan has his hand chopped off while the man in Selangor is imprisoned for a year?
7. Can hudud exist side by side and be consistent with the existing criminal law which is much more comprehensive than the limited hudud offences as supplemented by other takzir, qisas and diyat offences? Is it fair if a Muslim man is arrested for motorcycle theft in Kelantan and has his hand chopped off while a Muslim man who is arrested for criminal breach of trust (whether in Kelantan or otherwise) for a much larger amount than the cost of the motorcycle is imprisoned for a year?
8. Is it fair if two men are arrested for rape in Kelantan, the Muslim man is only punished under ta'zir at the discretion of the judge, while the non-Muslim man is imprisoned a minimum of five years and also whipped under the existing criminal law?
9. Is it fair for a Muslim rape victim to be open to the possibility of being accused of zina (adultery) or qazaf (false accusation of zina) if she is unable to provide sufficient evidence or witnesses? What happens in a situation where a woman or girl is pregnant from rape whether by force or statutory rape? Will that be taken as conclusive proof of zina if she is unable to disprove rape due to the disproportionate burden of proof?
10. Is it fair that rape, a much more serious offence than zina, is only classified as a takzir offence that is punishable at the discretion of the judge while a married person who commits zina will be stoned to death?
11. Is it fair there is no hudud offences for massive cheating, embezzlement, criminal breach of trust, corruption (for example, the NFC “borrowing” and squandering of RM250 millions of government funds), while someone who steals a motorcycle will have his hand chopped off?
12. Is it fair that only male Muslims are generally competent to testify while the testimony of women and non-Muslims are not accepted or has a lower value? Why should non-Muslims especially women participate in the Islamic criminal law that inherently treats the testimony of non-Muslims or women as inherently inferior to a male Muslim?
13. Which jurisdiction will apply – hudud or existing criminal law – if the crime involves a Muslim perpetrator and a non-Muslim victim? What if the Muslim perpetrator insists that hudud be applicable (due to the higher burden of proof and inadmissibility or lesser value of non-Muslims’ testimonies) while the non-Muslim victim does not wish to submit to the Islamic criminal law jurisdiction?
14. Which jurisdiction will apply – hudud or existing criminal law – if the crime involves a non-Muslim perpetrator and a Muslim victim? What if the Muslim victim insists that only hudud will provide sufficient justice and punishment?
15. Which jurisdiction will apply – hudud or existing criminal law – if the offence committed like theft and robbery are found in both jurisdictions? Can the Muslim perpetrator opt for the existing criminal law because he does not want his hand chopped off? Or can he opt for hudud due to the higher burden of proof which may allow him to escape punishment?
16. How will hudud be able to function if it does not have jurisdiction over non-Muslims? Can the authorities compel non-Muslims to assist in investigation or testify in court? Will their evidence even be of any value?
17. Is it fair for non-Muslims who have aided and abetted Muslims to commit offences be let off the hook while Muslims are subjected to stoning and whipping in cases of zina and syurb (alcohol consumption)?
18. Is the punishment of stoning to death, crucifixion, whipping and amputation of the limbs still accepted in this day and age? Do they not amount to torture, cruel and inhumane punishment? What if the Israelis were to impose similar Jewish law punishment found in the Torah (that shares the same roots of punishment in the Quran) against Palestinians who oppose their rule?
19. Have the authorities considered the possibility of death or other life threatening complications resulting from amputation? Who will be held responsible?
20. How will these sentences be carried out? Who will amputate, crucify, stone persons to death? By court officials, trained "professionals", witnesses, victims of the crime or their family members or the public at large? Will these sentences be done in public or in secret? – May 9, 2014.
* Eric Paulsen is executive director of Lawyers for Liberty.
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