PAS, the opposition party in Malaysia attempts to implement Hudud law (the Islamic criminal law) in the country has attracted great criticism. Although Malaysia recognises Islam as the official religion for the country, Malaysia is a secular country with Federal Constitution which upholds the right to freedom of religion. Some argue that implementation of Hudud law may only affect Muslims. However, this is different from the Sharia law (an Islamic personal law) that encompasses only certain aspects of laws relating to marriages, divorces and inheritance while Hudud law is a general law. As a consequence, implementation of Hudud law will involve amendment to the Federal Constitution and the Penal Code. This will definitely impede the rights of people with other faiths or different beliefs. It is a disappointment that the Deputy Prime Minister Tan Sri Muhyiddin’s claimed that all Muslims must support the implementation of Hudud law, because as a country’s leader, he should not put his personal beliefs above the rights of all the citizens.
Before discussing how Hudud law infringes human rights, it is essential to understand the ideology and content of the Hudud law. The concept behind the Hudud penalties is to secure the rights belonging to the God as they are created to protect the whole society as opposed to Qisas penalties (another Islamic criminal law) which are created to protect merely the individual’s rights in the society. Hence, Hudud law imposes mandatory punishment, which has to be fulfilled as required by the God, and no one including the judge could remit or alter the punishment.
It is contended that Hudud penalties violate the human rights. There are several types of punishments stated in the Hudud laws. The punishments for offence of Zina (extramarital sex or premarital sex) are 100 lashes for unmarried offender and stoning to death for married offenders. The punishment for Sariqah (theft) is amputation of hand or cross amputation of limbs. Those who convicted of Hirabah (piracy or unlawful warfar) may be punished by stoning to death, crucifixion, cross amputation of limbs or exile depending on the severity of the crimes involved. There is no clear punishment for al-Khamr (drinking alchohol) but the Islamic jurists suggest that the punishment should be flogging up to 80 lashes. Finally, death penalty is the punishment for al-Baghy (all kinds of oppressions) and Riddah (apostasy).
From the punishments mentioned above, we can learn that Hudud penalties are disproportionate for the crime committed. Implementation of punishments that includes different form of cruel, inhuman and degrading treatment imposed on the offenders violates the human rights. The nature of Hudud penalties is outdated and inhuman. It does not fit in the country with multiracial and multi religion society.
Besides the nature or severity of Hudud punishments which violate human rights, the evidential rule of proving crimes under Hudud law causes rights of the victims not protected by law as well. It must be proven that the property stolen is of value, and the word ‘value’ must be interpreted in a way consistent with Islamic teachings. Objects like pork and alcohol have no value in the Islamic context and therefore Muslims who committed theft of thousands of pounds of alcohol or pork will be free from conviction. There is no remedy for the owner for such properties as well as they could not prosecute the Muslim offender under civil jurisdiction as it is prohibited by the doctrine of double jeopardy.
Besides that, 2 to 4 witnesses are required to prove guilt in general. Under Hudud law, only free and trustworthy adult Muslim men can testify in the court. This has significant prejudicial effects on the party who wishes to call witness who is non-Muslim or whose gender is not a male. In a rape case, the woman alleging rape needs 4 adult Muslim men to prove the sexual intercourse without consent has taken placed. This is an unreasonable burden on the victim and alleged offender who has been acquitted for insufficient evidence may result in the victim being prosecuted for extra-marital sex or fornication. It is apparent that the evidential rule discriminates against women and non-Muslims. As a consequence, the restriction on rule of evidence impedes the people’s rights to fair trial.
It must be noted that countries that implemented Hudud law like Nigeria, Pakistan and Sudan have more social problems or lack of fairness in the justice system compared to countries that do not implement Hudud law. For instance, countries like Finland, Sweden and Denmark have better peace rate. Implementation of law should not be used as a tool to promote religious sentiments but maintain the social order. Again, Malaysia is a country with multi-racial and different religions and thus implementation of Hudud law is certainly inappropriate.
In conclusion, other opposition parties and non-governmental organisation should cooperate to prevent the Hudud law from being proposed in the Parliament unless experts are consulted and the Hudud law is being modified to a form or version which is fair and suitable for implementation in a nation with different beliefs.
By Tan Sek Meng