PETALING JAYA: It remains to be seen how the implementation of hudud in Kelantan will turn out in the state’s legal system, but there are several unnerving and downright confusing scenarios which could arise.
Given that an Islamic penal code will result in differing punishments for Muslims and non-Muslims, crimes involving a Muslim perpetrator and non-Muslim victim or vice versa will create legal ambiguities over the jurisdiction of the civil and Syariah courts.
Hudud imposes specific punishments for a list of crimes outlined in the Quran and the sunnah (Practices of Prophet Muhammad).
These include offences such as theft and robbery, which are punished by amputation. Then there are more severe offences such as adultery, rape, apostasy and sodomy, which are punishable by public caning or stoning to death.
In Brunei and Aceh, where strict Islamic law has been observed since 2014, there are also laws against khalwat (close proximity) and public consumption of alcohol.
Most of these offences may implicate non-Muslims, despite the Federal Government’s assurances that hudud will only apply to Muslims.
The most recent example of a non-Muslim punished under Syariah law was in Aceh, Indonesia, where a 60-year-old Christian woman convicted of selling alcohol received 28 lashes of the cane.
The accused, Remita Sinaga, is however believed to have voluntarily opted for the Islamic punishment instead of a jail term.
Aceh imposes Syariah law only on Muslims, but allows non-Muslims to submit to it if they wish.
A similar scenario is possible in Kelantan, where non-Muslim perpetrators could choose punishments under hudud over corresponding civil punishments.
However, this could then create inequality in the extent of punishment imposed for the same crime.
Complexities also arise in deciding which branch of the courts should hear such cases. Will the Civil and Syariah courts conduct separate trials on the same case? And which set of evidentiary requirements would apply?
For example, in the case of rape by a Muslim against a non-Muslim, the evidence required in a Syariah Court is the testimony of four male witnesses whereas if a Civil court conducts its own trial, physical injuries and DNA evidence may be enough to prove the offence.
For the crime of adultery, two consenting individuals may find themselves subjected to different treatment if one is a Muslim and the other is not. The Muslim individual will be seen as having committed a major offence and can be severely punished by whipping, while no action will be taken against the non-Muslim because adultery is not a criminal offence under civil law.
These scenarios depict an unjust and ambiguous exercise of the law, which could likely become a reality if hudud is implemented.
The death penalty has been excluded from Kelantan’s version of hudud, with the Private Member’s Bill brought by PAS president Datuk Seri Abdul Hadi Awang seeking to amend the Syariah Courts (Criminal Jurisdiction) (Amendment) 2016 to prescribe sentences apart from the death penalty for Syariah offences.
This means that crimes such as apostasy and adultery could be subjected to other fitting punishments that may include whipping, fine or imprisonment.