MUCH has been written about hudud. Many have pointed out that to implement hudud, or at least hudud as proposed by PAS to be carried out in Kelantan on Muslims, would be unconstitutional.
So far, we have not really seen a convincing rebuttal from PAS or others who want hudud to be implemented in Kelantan on how these legal and constitutional hurdles may be overcome. Even if Parliament passes the two Private Members Bills proposed by PAS, there is every likelihood that it will be struck down by the courts.
This article will not revisit the same legal and constitutional angles. Instead, it is an attempt to present a view on implementing hudud, as proposed by PAS, in our present, non-lslamic state.
Hudud is one part of Islamic criminal law. Islamic criminal law, meanwhile, is just one part of the Syariah, the entire legal system in an Islamic state.
In Islamic criminal law, there are generally three types of crimes. The most serious crimes are known as hudud - crimes "against God" or "against limits ordained by God". In an Islamic state, the sovereign is tasked to punish these crimes if individuals have transgressed them. The punishments for these crimes are fixed and the judge cannot reduce or change them if the offender is found guilty.
Because of their seriousness, these crimes are limited in number. Most scholars agree that hudud crimes are theft, highway robbery, drinking alcohol, illegal sexual intercourse (zina) and false accusation of zina. Scholars are split on the crime of apostasy; some say it is a hudud crime while others disagree.
Apart from hudud crimes, other types of crimes under the Syariah are ta'zir, qisas and diyat. Ta'zir crimes are crimes against the state and they are discretionary; the state has the discretionary powers to punish these crimes. Qisas are crimes punishable on the principle of "an eye for an eye". Diyat are crimes that may be punishable like qisas but instead, the victim may accept compensation or "blood money" instead.
The burden of proof to establish a hudud crime is extremely high. It is far heavier than the burden of proof that we have in our current system of "beyond reasonable doubt". To find a person guilty of a hudud crime, there must no doubt at all as to the guilt of the person. If there is any doubt, the judge must not find the person guilty of a hudud crime and instead commute it down to ta'zir crime, for which the punishment is discretionary.
Hudud is one part of a whole system. Islam envisages a comprehensive system of values for society. Not just laws, but in terms of obligations to God, obligations to each other and obligations to the Islamic state. In such an environment, hudud is just one aspect, the extreme end that provides for punishments for the most serious of offences.
In such a system, hudud would be able to achieve its objectives, which include justice and deterrence of crimes. But what PAS is proposing instead is to lift one part of the whole and import it in our current, non-Islamic state and say that it will achieve justice.
To take one aspect of Islamic law and to import it into the current system would not do justice to hudud and the Syariah as a whole. Hudud should be implemented only in a state where all the institutions of the state are in line with the Syariah.
That is why we can immediately point to the problems that would occur if PAS' hudud plans for Kelantan are implemented. Issues with Muslims in Kelantan being subjected to two sets of criminal laws. Issues where Muslims in Kelantan would be subjected to heavier penalties compared with non-Muslims in the state. Issues of crimes committed jointly by Muslims and non-Muslims. Issues of double jeopardy. Issues of compelling non-Muslims to attend the Syariah Court for trials of hudud when the Syariah Court has absolutely no jurisdiction over non-Muslims. Hudud, when implemented in an Islamic state, is not just for Muslims but is applicable to all. Instead of achieving justice, PAS' plan would instead create inequality and breed injustice.
Islamic scholar Mohammad Hashim Kemali argues that any arbitrary and selective division of the general of Syariah is bound to harm the spirit and structure of the Syariah and would be tantamount to oppression, the opposite aim of what hudud should achieve. An Islamic political order should first be established, before hudud can be implemented.
He cites the example one of the rightly guided Caliphs, Umar al-Khattab, who suspended the hudud crime of theft during a year of famine. The rationale for this was that it would be unjust to enforce hudud in such circumstances, as people were more likely to commit theft when food was scarce. Many other Islamic scholars, including the respected and celebrated Tariq Ramadan, have also argued for a moratorium on hudud when the conditions are not suitable for such laws.
As mentioned by Hanipa Maidin, the PAS MP for Sepang, in his recent article, hudud is "…only capable of dispensing true and effective justice when it is implemented in a perfect Islamic environment where good governance and sound policy prevail. On the contrary, in the absence of good governance, hudud, despite its aim of bringing genuine law and order, may be counter-productive especially if such laws are implemented by a failed state."
We are not yet a failed state. But there are many aspects in which the institutions of the state have failed. We have a crisis of confidence in our public bodies. We have not achieved social justice. Those who are in need of assistance and protection have not been adequately assisted and protected. We are still grappling with issues when it comes to having a dual system in the area of family law. We have not upheld constitutional guarantees. The list of woes is long and growing, and it needs our undivided attention.