Outside legal parameters

THERE has been quite a bit of brouhaha lately over the ambitions of certain parties to impose hudud, the Islamic punishment system for crime, in Malaysia. This has been countered by parties vigorously expressing opposition to such a law on moral and civil grounds.

Amid the heated rhetoric and contentions from all sides about the irreversible dangers or espoused virtues of such a law, one key issue has been largely neglected. It is the question of whether, in the very first place, a system like hudud is even legally possible in this country.

Most quarters, particularly those outside the legal fraternity, seem to be unaware or have forgotten a key decree of the Supreme Court in 1988 – that the country be governed by secular laws. It effectively places clear legal parameters not just on hudud, but on any move to set up a theocratic Islamic state in the country.

This ruling was made within the provisions of the Federal Constitution by a five-man bench of the Supreme Court, headed by then Lord President Tun Salleh Abbas himself. Until today, the ruling stands.

In fact, this decree was highlighted some time back by DAP chairman and Bukit Gelugor MP Karpal Singh, who has asserted that all parties are bound to accept a decision of no less than the Supreme Court itself.

“This (Islamic state and hudud) would infringe the ruling by the Supreme Court which has decreed that the country be governed by secular laws,” Karpal said.

Even PAS, the Islamist party that has of late publicly aired its desire to implement hudud, must at the end of its own drawn out arguments, abide by this crucial pronouncement. And ironically enough, Salleh Abbas was once a PAS state executive councillor in the Terengganu government when the state was ruled by the party from 1999 to 2004.

In addition, there have been continued assertions of the plain fact that in the Federal Constitution there is absolutely no provision for rule of law by theocratic means in Malaysia.

So why this sudden flurry of declarations about the urgency for hudud? How did the issue crop up, seemingly out of the blue, to become a matter that has caught national attention?

A journalist friend of mine who worked for a lengthy period in Kelantan, which has long been ruled by PAS, told me that during his entire time covering the government there over the last few years, there was hardly any importance given to hudud.

In fact, Kelantan Mentri Besar Datuk Nik Abdul Aziz Nik Mat, who is also PAS’s spiritual adviser, is known to have warded off questions from reporters whenever asked about adopting hudud in the state. So why the sudden explosion of interest in the matter now?

Kelantan executive councillor Datuk Mohd Amar Nik Abdullah has been reported to have gone as far as to say that Kelantan is proposing that civil laws be amended to allow criminals to be punished by way of hudud law provisions. He reasoned that this is necessary to make punishments fair to both Muslims and non-Muslims.

However, there is also a view that criminals cannot be easily convicted in Islamic courts because of hudud’s stringent requirements, such as that of several eye witnesses who are pious Muslims. In adultery, for example, a person can only be convicted if there are four eye witnesses who are upright Muslims. Karpal has called this an “impossible” scenario.

But in the end, the question should rightfully be focused on whether imposition of religious punishment is at all lawful in this country, based in absolute terms on what the constitution provides and the Supreme Court’s ruling in 1988.

Himanshu is theSun’s Penang bureau chief. Comments: letters@thesundaily.com