Many may now insist that the PAS state government of Terengganu should be branded as recalcitrant.

PAS proposes to push through its hudud law next month in the state legislature in the face of a possible 'federal trespass' of the powers of Parliament to make laws under the Federal Constitution.

Did not PAS affirm its stand to uphold the Constitution? Is PAS just all ulama and no statespersons?

The Federal Constitution lays down very specific provisions on the power of the state legislature to make criminal laws and sets limits on lawmaking powers of the latter. In fact, it required Parliament in 1988 to pass a revision to the federal law called the Syariah Courts (Criminal Jurisdiction) Act 1965, just so to allow an increase in the powers of state Syariah Courts to mete out penalties under any state law to a RM5,000 fine, three years jail and six strokes of the whip.

At least, this is how we have understood the workings of the federal and state legislatures since Merdeka Day; that Parliament has primary power in criminal law matters. It is obvious that PAS would bank on Article 3 of the Federal Constitution that Islam is religion of the federation and that the state legislature has primacy over all matters Islam.

The 929 (Sept 29, 2001) declaration by the prime minister that Malaysia is an Islamic state and the press statement last week (in conjunction with the Umno general assembly) that we are a fundamentalist one at that did little to clarify the issues at hand.

Cruel laws

Political punters would say this is playing right into the hands of an already fundamentalist PAS; bagaikan bulan jatuh ke riba . The PAS bulan (moon) is brighter now than ever with help from Umno.

Politically speaking, if the PAS hudud is a cruel law, what about the regime's Internal Security Act and all other preventive detention laws and the death penalty under the Penal Code and drug laws? If we wish to bring the Hereafter point here, 'secular' or 'religious' cruelty would score similar points, would it not? Go figure it out.

The PAS administration has decided to take on the hudud controversy head on despite a flurry of protests from the regime and civil society groups. Presumably PAS is confident of continuous political support from its voting public including predominantly if not all Malay-Muslim groups like Abim (Malaysian Muslim Youth Movement) and JIM (Jemaah Islah Malaysia). After all PAS did get the Kelantan hudud law through in November 1993, and still managed to garner strength and support and captured Terengganu in the 1999 general election.

Political suicide

Perhaps PAS sees no option but to implement hudud which it perceives as an Islamic imperative, just as the BN-disenchanted rakyat has little option but to continuously vote for any opposition, because larger interests are still at stake. Unfazed by predictions of political suicide, PAS is single-minded in this endeavour ( ikhtiar ) and in Muslim tradition, had left what comes after ikhtiar , as so willed by God ( tawakkal ).

One constructive outcome of this challenge to multi-cultural Malaysia is the public education and discussion generated by the proposed law, more so than that occasioned by the Kelantan episode. Groups, however, still complain that PAS sessions with the public are more of a majlis penerangan awam (public briefing) as opposed to a shura (consultation).

At the present, the state hudud law in Kelantan is a dead letter law. The law is not enforced for reasons including allegations of its unconstitutionality. However, there was no court challenge to strike down that law as void on federal trespass. The 'suspended' Kelantan hudud law is a law in waiting.

Juristic validity

Whatever the options presented on the constitutionality of the Terengganu hudud if tested, PAS would still maintain the juristic validity of the hudud law as the general or common law of Islam. The concept of the nation state merely introduces the requirement that hudud be presented as a piece of positive legislation which requires its passage in the legislature for it to take effect as the law of the land.

In this, PAS does not stand alone. Muslims, even if they are wary of the reported incidents of the implementation of hudud gone awry in Muslim lands elsewhere, are constrained from questioning the premises of hudud. Opposition to hudud is considered inimical to being Muslim.

Traditional juristic opinion may render disbelieving Muslims as apostates ( irtidad ) which exacts a hudud penalty of death if so proved. Current state Islamic laws which provide for rehabilitation for apostates and deviants are not hudud laws.

Given the traditional juristic views as above, one would understand where NGO arguments, like existing economic conditions of society, as being not suitable for hudud's implementation or that man's interpretation of hudud is short of the word of God, are coming from. These arguments unfortunately take a reductionist hue.

Losing a leg

If we take the point of man's interpretation, the Quran is understood via interpretation or exegesis from the time of revelation until today, the alleged 'closing-of-the-gates of ijtihad (independent reasoning)' notwithstanding. To use this point effectively, it has to gather more rigour. As to alleged economic conditions, what if the what and the when are fulfilled? Whose view of the what and when would prevail? One loses a leg to stand on if the bluff is called, so to speak.

PAS has somewhat taken the wind off the sails of the complaint on rape and zina . Terengganu PAS acknowledged that zina (illegal sexual intercourse; consensual sexual intercourse between unmarried persons and adultery) does not contemplate rape of women as it would be impossible then to find four Muslim male eyewitnesses to prove rape beyond reasonable doubt. Pregnancy as circumstantial evidence of zina makes little sense where rape had occurred.

The PAS hudud remains intact with an inclusion of 'secular' rape provisions from the Penal Code as ta'azir laws to complement the zina provisions in the Terengganu bill. It is tough to fault PAS on this. Still the question arises whether all pregnant (unmarried) Muslims in Terengganu could still be rounded up by state moral police as suspected zina offenders first until she cries rape (as a defence) in which case the secular rape law procedure kicks in.

Further, the Violence Against Women campaign to reform the rape laws in the Penal Code (a federal law) from the mid-1980s has not yet materialised to satisfaction. So it is still an unreformed rape law that PAS would be adopting.

Hudud controversy avoided

Hudud (singular hadd ) literally means fixed punishments. Juristic opinion has classified hudud as falling into the domain of God ( haqq Allah ) based on the interpretation of the verse not to transgress the limits of Allah (Q:2:229).

Contemporary work on Islamic law reform invariably would discuss freedom of belief and conversion, the rights of women and the status of non-Muslims as contentious issues in Islamic law. The hudud law is often not included as contentious. This can only stress the controversial nature of the subject of reform and hudud.

Muslim literature discusses disputations only in relation to the penalties of rajm or stoning for adultery, death for apostasy and whipping for drinking wine. The sources of these penalties are not in the Quran. In the case of whipping for drinking wine, it arose out of juristic reasoning through qiyas (analogy) and ijma (consensus) of a Quranic injunction on the false accusation of unchastity of women or qadhf . These opinions developed during the 'golden age' of Islam (about 150 years after the death of the Prophet in 632AD) through exegesis and legal methods form fiqh or law.

The human rights challenge of rape as zina in hudud laws is an end of the last century phenomenon arising out of the campaign of human rights violations of raped women being penalised for zina by the Islamic state in Pakistan. Women were at the forefront of this struggle. There are records of Muslim vigilante groups meting out similar penalties to women in Bangladesh. Human rights activists are consistently monitoring and documenting similar violations in Muslim Africa from the last five to seven years or so.

Human rights

The Islamic revolution of Iran and the campaign on the Pakistan hudud-rape human rights violations brought into international focus the issue of human rights and Islamic law. These issues were effectively lobbied on all sides at the 1993 UN Human Rights Conference in Vienna. Muslims were represented on all fronts as well.

Negotiated language in the Vienna Declaration and Plan of Action recognises diversity and multi-culturalism and the universality of human rights principles. To that diplomatic language, activists placed caveats that governments should not be allowed to use the argument of cultural relativism to sanction and perpetrate human rights abuses. At the end of the day, activists have to rework the language in practical agendas in their home countries.

Human rights literature post-Vienna continues to interrogate issues of cultural relativism and universal principles in the contexts of allegedly 'Western, secular' and religio-cultural experiences.

A cultural legitimacy to human rights norms is necessary for effectiveness and respect. This view which is reflected in writings of Islamicists as well, notes that cultural origins and universality are inter-related, because acceptance of human rights depends in part upon the cultural identification with the presuppositions that ground human rights as a moral claim.

International human rights standards, whatever may have been its shortcomings historically, have now achieved a high level of consensus through deliberate and settled processes of articulation and adoption over the course of several decades. It is simply not a viable option to disregard these standards. These provide a level of protection where rights do not exist and the rights discourse is a powerful vehicle to interrogate cruel and exploitative aspects of religious and cultural tradition.

Internal discourse

Muslim scholars note that any proposed reformation ( islah ) of Islamic law is preferably left to the process of an internal discourse. An external effort to impose change is often charged as an exercise in cultural imperialism and rejected as such. Contemporary scholars taking this line do not reject international human rights standards and continue to explore ways of reconciliation.

I view international standards forged through decades of consensus as constituting an aml (practice) or urf (custom) which is capable of being accepted as a source of law in the Muslim worldview. Muslims must maintain an open mind on this point. Consensus is very highly regarded in Islam.

An internal discourse on hudud requires firstly an interrogation of the juristic basis of the development of hudud. Some scholars note for example that the Quran being a religious text gives little guidance in the verses as to the legal definition and specific ingredients of each offence.

The founding jurists constructed their own understanding of each offence through the use of the Sunnah (practices of the Prophet) and other available traditions. Jurists are also working from a historical cultural context in distilling principles of law. There is at present (subject to specific research) very little information to what extent or in what sense penological and sociological justifications and political realities were relevant to the conception and application of hudud.

Just to illustrate a point, we know that the Prophet had to deal with some four cases of zina in his lifetime. There are also recorded instances where the Prophet had sent away the offender who had confessed to illegal sexual intercourse with the advice that they should think over their confession. In the light of the Prophet's action in sending away confessing offenders, we might question the juristic opinion that there is no pardon to the hudud offender by the judge, the political authority or by victim of the offence once the hudud is reported. This view can be said to be incompatible to at least the hadd of consensual sexual intercourse if we take counsel from the Prophet's actions as above.

In the May episode of allegations

of sexual misconduct of ministers, it was reported that the Prophet had a hadith advising Muslims not to expose what should be kept private ( aib ). Scholars note that there is no right of privacy against God for as the Quran says God knows what you conceal and what you reveal (Q:16:19), but an argument can be made for a right of privacy against other human beings.

What some scholars suggest is that there may be still substantial room for legislative discretion in determining the definition and ingredients of hudud offences. Legislative discretion can go either way; it can be used to restrict or to expand the scope of offences and its application in practice.

Urgent task

It is not possible to expand any more on these views for the present. What appears to be a most urgent and practical task for Malaysia is to put together a meeting of some of the critical thinking scholars to work on specific projects such as hudud as this is one of the more complex branches of Islamic law. There should be an interrogation of methodological issues as well as the underlying juridical theology and legal philosophy.

Some of the best minds are reconstructing paradigms as voluntary or forced exiles in 'kafir lands' only because some emotive Muslim mob including the 'Islamic state' would probably secure their lynching in their own countries. Their single most frustration is not being able to see the fruits of their endeavours in practice in a reflection-action praxis as they remain outside Muslim countries.

As a concluding note, the implementation of Islamic law is intended to secure the public interest. In the context of the modern nation state, the interest of rulers and citizens may not necessarily be the same. Reformist scholars take into account the sociological, economic and political transformations that have occurred in Muslim societies.

This empirical reality is then brought into dialogue with the tradition in an effort to reconstruct it for newer contexts. In modern day societies organised in nation states, 'contract' is the operative means of exchange where the individual citizen is a separate entity from the state that exercises independent authority. Muslim societies are transformed from the traditional 'status' societies into the 'contract' model.

This tension between 'status' and 'contract' is an important distinction, too often ignored by some Muslim thinkers who continue to presume that it is the 'status' of the individual which determines the attachment of obligations, duties and responsibilities. This may have been so in traditional societies.

The Islamic imperative of securing the public interest would have to consider these developments. People coerced into any kind of political system without broad-based consensus would rebel.

References:

Mohamed S El-Awa, Punishment in Islamic law . American Trust Publications. 1982

Abdullahi Ahmed An-Naim, Toward an Islamic reformation (especially Chapter 5 on Criminal Justice). Syracuse University Press. 1990

Abdullahi Ahmed An-Naim, "State responsibility to change religious and customary laws" in Human rights of women (Rebecca Cook ed) University of Pennsylvania Press. 1994

Yash Ghai, "Universalism and relativism, human rights as a framework for negotiating inter-ethnic claims". [2000] 21 Cardozo law review Vol 4, 1095

Ebrahim Moosa, "The dilemma of Islamic rights schemes" [2000] Vol XV Journal of law and religion 185

Faruq ul-Rafi Nelson, "Toward an Islamic law of privacy" (1991) Unpublished.

SALBIAH AHMAD is a lawyer and independent researcher. To answer all recent queries, she is no longer affiliated to Sisters in Islam as of July 1997. Malaya! as the name for this column was inspired by the meaning of "Malaya" in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. Malaya! takes on the process of reclaiming the many facets of independence.