PAS expects acquiescence to its hudud law as an act of faith by presenting it as a fait accompli of iman (belief) and aml (practice). It is a trump card par excellence, not dissimilar to the gambit of either you are with us or against us.

It is interesting that no one has yet raised the query if hudud is to be believed as though it is one of the pillars of belief in Islam. To all practising Muslims the five pillars as determined by consensus ( ijma ) are confined to the shahadah (belief in God and Muhammad as the Prophet), solat (five ritual prayers), sawm (fasting in Ramadhan), zakat (tax) and haj (performing the pilgrimage to Mecca).

PAS has tried the 'Islamic state' card and went back to the drawing board when DAP and PRM made their different views known. Its proclaimed allegiance to the Merdeka Constitution could be diplomacy. After all, the Constitution itself in Article 3 proclaims that Islam is the religion of the federation. That window awaits judicial interpretation. Until conditions are favourable, PAS embarks upon a public education programme on its Islamic agenda.

A recent statement indicates that PAS may well pass hudud laws at state level where it has control of the legislature. PAS then awaits a PAS-majority control in Parliament to make the necessary amendments to the Constitution to overcome the current legal impasse of federal-state trespass on criminal laws.

Its re-introduction of the hudud law after the passing of a more or less similar law in Kelantan in November 1993 (which Barisan Nasional state assembly representatives also supported), is another way of impressing its 'Islamic state' proposal. According to popular belief of Muslims here, regardless of their political affiliations, hudud is concomitant to an Islamic state.

Keeping everyone guessing at least keeps the public interested. Umno, notwithstanding the surprise 'resignation' of the prime minister on June 22 with guesses all around, still reads like yesterday's news.

The rush to reclaim an Islamic statehood confuses multi-cultural Malaysia. The 929 (Sept 29, 2001) Umno Islamic state declaration is perceived to counter the political rhetoric of PAS that it is the Islamic party to deliver the masses (with a near-majority non-Muslim population) from ignorance ( jahiliyya ).

'Rightly-guided' political authority

After 44 years of independence, assuming an Islamic mantle becomes a new-found criteria of the 'rightly-guided' political authority.

In Political Islam: religion and politics in the Arab World (Routledge.1991), Nazih N Ayubi theorises that current Muslim regimes maintain the juridic tradition of linking politics and religion from the past glorious age of Islam. The occasion which initiated the fusion of religion and politics can be traced to a socio-economic event.

Ayubi maintains that the historical origin of the convergence between religion and politics goes back to the second caliph Umar's reign. It can be traced to the dissatisfaction of Muslims over the distribution of jizya (poll tax on non-Muslims of conquered lands) among them.

Income from jizya was dwindling due to the incorporation of large Muslim non-Arab communities and converts. Jizya was no longer sufficient to support a state that was larger with a larger proportion of Muslims over non-Muslims. Umar's reign saw jurists being absorbed into the administrative bureaucracy, often as state functionaries as well.

A new official theory had to justify and legitimise in religious terms the necessity of imposing tax on Muslims themselves. Making it formal and official was also to render obedience over factional sections of the populace comprising of Shii and Khawarij Muslims. It was also an attempt to impart an ideological or cultural cohesiveness of the community which is being threatened by these factions in the early days of the empire.

The official theory was facilitated by state jurists, employed with the implicit intention of conferring legitimacy on the political leadership to impose various new taxes. Religion is appropriated by the political leadership in this way, which is the reverse of the European experience where the Church appropriated or interfered in politics.

Jurists who are known in latter day literature as political thinkers from al-Mawardi (d. 1058), al-Ghazzali (d. 1111) to Ibn Taymiyya (d. 1328) tended to legitimise any political regime that would guarantee a modicum of protection to Muslim institutions (see Abdulaziz Sachedina in The Islamic roots of democratic pluralism . Oxford University Press. 2001). Despite this, one finds al-Mawardi for instance directing that his Al-Ahkam al-Sultaniyya be published only after his death.

There are of course independent jurists who distanced themselves from the state bureaucracy. Dissent was not welcomed. Founding jurists like Malik ibn Anas (d. 795AD) for example, was tortured and Abu Hanifa (d. 797AD) persecuted and jailed.

Decaying political institutions

Early Muslim political theory is not about individualism, liberty and law nor about rulers and governments unlike the European phenomenon that developed between the 16th and 20th centuries in response to the Renaissance and the growth of capitalism and individualism. (Muslim nations or the disintegrating Muslim empire at this time were eclipsed by wars and colonisation).

Early or traditional Muslim political theory had concepts of the group ( ummah ), justice ( adl ) and leadership. The theory of the state is essentially limited to the conduct of the ruler. Politics in early Muslim thought is about statesmanship and not types of state (for example, Mawardi's Al-Ahkam al-Sultaniyya ).

The classification of political units as states occurred only in the late 19th century with writers like Jamaluddin al-Afghani, reportedly writing with influences from European theories. Muslims built their states and developed their government through innovation and borrowing.

Most major political concepts did not develop except during the periods when the political institutions about which they were 'theorising' were in decline during the Abbasid rule from about 750AD to mid-13th century. The period of the four 'rightly-guided' caliphs of Abu Bakr, Umar, Uthman and Ali, ended about 660AD.

The outcome of this is relevant to our present discussion on Islamic statehood and Islamic law.

Three main factors contributed to the sorry state of affairs:

  1. There was more than one caliph in authority in various parts of the empire;

  • There was a growth of opposition movements against the Sunni rulers in Baghdad; and

  • The internal social conflict was subjected to pressures from the Crusaders, the Mongols and the Latins.

    • It was said that the destruction of the old order by the fall of Baghdad to the Mongols in 1238AD for example, was a turning point in the intellectual coherence of Muslim jurisprudence.

    However, the problems and contradictions between ideas of 'legitimacy of government' and 'unity of the ummah ' had already set in from the 9th century AD (see the three factors described above).

    Syariah as the basis of ideological unity

    Towards the end of the Abbasid rule when separate dynasties ruled in various parts of the empire, both political and 'ummatic' unity were no longer attainable. The emphasis then shifted to the syariah (used here as a general term to include the general principles which found the jurist-made fiqh or law) as a basis for ideological unity. All this sounds very familiar to our current political climate.

    Ayubi opines that the attempt to rescue the community in these dying moments of the empire created a juridic theory of the Islamic state with emphasis of its presumed religious character. These juridic attempts were undertaken to make the ruler's deeds appear to be in line with God's word, though these attempts were rarely about making governments more responsible to the people and their needs.

    The ummah (community) increasingly becomes the jurist's basic unit of analysis and not dawla (which does not mean 'state' but rather dynasty or territory. The caliphates were dynastical.). The ummah 's universal function is the propagation ( da'wa ) of the message of Islam. The political authority is the instrument through which the application of the main tenets is overseen. Sovereignty is related to the syariah. Legislation is not really a function of the state for the syariah precedes the state and is not one of its products.

    As there is very little in the Quran and Sunnah about politics and the state, and the fact that state-employed jurists were not writing descriptively but prescriptively, Ayubi maintains that the juridic theory of the Islamic state (or the political theory) could be said to be based on fiction. Probably Ayubi does not mean to belittle as much as to show that the jurisprudence (sum total of treatises on politics and law generally) developed at this time represented a quest of an ideal and not the practice or aml .

    Fiqh-cum-syariah

    These works represent to subsequent generations not simply as an ideal, but a reality that is believed to have existed. The jurisprudence acquired over time a role that in the heyday of its production it never actually played. Intellectual possibilities are perceived as given realities.

    Fiqh (jurist-law) has come to take on the mantle of the syariah. It is equated as the Message of the faith. Hence, the political potential and power of that fiqh -cum-syariah.

    There is very little work or if done, not made popular, on the sociological approaches to development of political theory and fiqh . As both were developed by jurists as the ideologues of Muslim rulers, both are included under Muslim jurisprudence as jurists have employed similar methods in deducing legal principles.

    Jurists albeit relying on the Quran and sunnah (normative practice of the Prophet), also evolved methods of deducing principles such as qiyas (analogy) and ijma (consensus) among others. Reliance on the sunnah is essentially a reliance on the traditions of the first and second generations of the Prophet's companions after some 150 years of the death of the Prophet in 632AD. Where there were disputes as to the normative practice (local variations of reported traditions were inevitable), jurists opt for the aml (practice) of the people of Medina as most authoritative.

    Jurists were working in the main administrative centres of Basra and Kufa in Iraq, Damascus in Syria, in Eqypt and in Western Arabia. Differences of opinion were settled via consensus where possible, although there were occasions where the consensus may be territory bound such as the consensus of Basra or Kufa.

    During the 10th century AD, jurists allegedly arrived at a consensus that independent reasoning or ijtihad is no longer possible as they in that generation have exhausted all deduction and had extrapolated all conceivable legal principles on anything under the sun. Thus, the closing of the gates of ijtihad theory.

    As a consequence of that 10th century reasoning, Muslims are expected to observe only the principles as exhausted up to the 10th century AD. Thus any straying from this can be conceived as illegal and sometimes in a worst-case scenario, politically construed by the powers that be as apostasy.

    Political conditioning

    We need to understand that these outcomes are politically conditioned as new writings on politics, history and sociology have shown to be the case.

    Abdulaziz Sachedina in The Islamic roots of democratic pluralism as with an increasing number of Sunni and Shii modern commentators (as for example, Abdolkarim Soroush in Reason, freedom & democracy in Islam . Oxford University Press. 2000), note that the problem arises when historical necessities were used to justify political polices whether in the past or at the present day.

    Sachedina opines that Islamic tradition is faced with an epistemological crisis. We do not have a hands-on knowledge or information or an objective evaluation of how rational decisions were achieved in applying Islamic norms during the 'glorious golden age'. There are inadequacies in methods of inquiry and forms of argument that have shaken our confidence in the capacity of our inherited knowledge of the past to give solutions to the concrete problems faced by us in contemporary social and political contexts.

    While these observations were made in general reference to the Islamic political order, they are equally relevant to the jurist-developed fiqh , (however well-meaning the jurists may be in the distant past) of which hudud is a part thereof.

    Thus, the view that there is indeed 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 is to be taken seriously. (see Abdullahi Ahmed An-Naim, Toward an Islamic reformation . Syracuse University Press. 1990).

    According to An-Naim, given the lack of reliable specialised historical information, very little is in fact known of the actual administration of criminal justice or their conformity to the juristic fiqh on hudud in Muslim history.

    Some commentators after studying such gaps in scholarship think of the proponents of the implementation of hudud as intellectually dishonest. Until the Muslims make an informed decision not to be (mis)led by partisan political interests, they would constantly be torn apart by the call to accept the implementation of hudud as an act of faith.

    This article was the basis of a talk at the forum on hudud organised by the Women's Crisis Centre, Penang on June 29, 2002.

    SALBIAH AHMAD is a lawyer and an independent researcher. 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.