About half a century ago, my ustaz, the late imam of Masjid Kg Baru told us, as Muslims we should follow Rukun Islam and Rukun Iman. We should be guided by the Quran and Hadiths. We could also refer to consensus from renowned Muslim scholars (Ijtima) and qias.

A few years later. I have another rukun (pillar) to follow - Rukun Negara. Now, I am told the federal constitution is supreme. Now which one takes precedence?

Wikipedia defines Sharia Law as a body of Islamic law. It is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Islam. Sharia deals with all aspects of day-to-day life, including politics, economics, banking, business law, contract law, sexuality, and social issues.

There is not a strictly codified uniform set of laws that can be called Sharia. It is more like a system of several laws, based on the Qur'an, Hadith and centuries of debate, interpretation and precedent.

The passing of the Syariah Criminal Code (II)1993 (Amendment 2015) Bill - Hudud Offences and Punishment in Kelantan recently had extensive coverage and points disagreeing to it are many.

These views are from learned groups and individuals and I am not totally against it nor accept it fully. I am no expert in this field but would like to briefly discuss the main points that have been raised and leave the decision to the experts and hopefully readers will come up with some sensible assessment.

Fact is, what was passed recently in Kelantan is an amendment to what was passed in 1993 with royal assent. However, hudud laws cannot be implemented until the federal Syariah Courts (Criminal Jurisdiction) Act and Article 76A(1) of the federal constitution is amended.

Points for discussion

1. Principles of democracy and consultation betrayed with no real respect for minority views. This may be true and the legal experts can advise how many of our laws been passed with proper consultation and respect for minority views? Besides, it is passed unanimously in the state assembly that has a sizeable minority. What happened in Kelantan a couple weeks ago is unprecedented.

2. Without proper transparency (no open debate or proper feedback, including consultations with civil society or legal practitioners). From the Kelantan state government (KSG) standpoint, they have opened up but maybe to a limited extent, for national/international level inputs. Again, how many of our laws been passed with proper transparency and open debate and consultation with the public?

3. Even Indonesia and other countries have not adopted it. This is correct. But do we need to be followers? Malaysia Boleh! We have gone far with our Islamic financing for whatever it is worth and can we not make this a model to be duplicated/followed elsewhere, of course with the inputs from relevant stakeholders?

4. In countries where it is implemented, there is grave injustice. Looking from the outside this is true. However, the question here is, do we need to follow those countries? Do they have a true democratic system? We in Malaysia have this perennial tendency to ‘follow’ but not lead!

The KSG must take note of this seriously and include ways and means to avoid this from happening.

5. Restrictive, unfair and moving backward. How about the other laws, are they all non restrictive, fair and progressive?

Are we ready to do away with death sentences and do all of us agree with the Sedition Act? Beyond our shores, do we want to follow and sent to prison, parents who wants to discipline their children and the sound of children playing considered as noise pollution?

6. Consider the application of hudud to be conditional upon the state of the society which must be just. Has there been any laws in Malaysia that implementation is conditional? The legal experts can throw some light here. How do we then define a state of society that is just and are there any examples where we can learn from? If none, we could start with one.

7. Priority is the promotion of social justice, fighting against poverty, etc. This is a very good point. The KSG should look at itself and ask whether it has done enough to lift the standard of living in the state. But then, it seems Kelantanese are happy with the state government and it still wins. Then again, are there any countries or states where priorities were well defined and practiced?

8. Religious authorities upholding contradictory juristic positions. Many things have been said on this matter and sadly it is true to a certain extent.

I think the muftis and our royal institutions can put this matter to rest. Maybe, the muftis can be more pro-active. Constitutional law expert, Professor Shad Saleem Faruqi suggested the Conference of Rulers to mediate and reconcile the burgeoning conflicts.

9. The ulama leadership are using hudud as a political weapon to slay their enemies within the party, not to bring about genuine moral governance. If this is the intention, the KSG should do some soul-searching. This is a party internal matter and I think it is not proper to insult the intelligence of its members.

My ustaz also told us, Muslims recite the ‘Doa Iftitah’ at least five times a day and they should understand its meaning, especially verse number four.

10. The texts relating to hudud are obsolete. Hopefully, the person saying this is an expert and has a basis and compared with the holy Quran and Hadiths?

11. Because of non-Muslims there will be two sets of criminal legislation. Questions raised were would different sentences (one more severe than the other) be just or morally right.

For a progressive and hopefully just society and with all the transformations we are carrying out, we should re-look at all the old and archaic laws and keep up with the times. The KSG has also to ensure the punishments took into consideration all related hadiths that are non-punitive.

It is about time, our lawmakers reduce politicking and ‘prioritise’ what they are supposed to do including to review archaic laws.

12. Hudud in Kelantan will set Malaysia on an irreversible path towards the enforcement of the Islamic penal code on all citizens.

The worry here may be based on all the negativities highlighted earlier and possible bull-dozing in other states. If there is a discourse to incorporate other views, the outcome may be different.

According to Professor Shad Saleem Faruqi, under Article 38(2) of the constitution, the Conference of Rulers has the power to “deliberate on questions of national policy... and any other matter that it thinks fit”. The Conference is not constrained by the federal-state division of powers.

As the Yang di-Pertuan Agong and the sultans are the sovereigns of all their subjects, whether Muslim or non-Muslim, they are also well placed to guard the interests of the non-Muslim citizens of the country.

I am sure the Rakyat has trust on the royal institutions.

13. Federal constitution did not allow for hudud implementation. We seem to be rigid on this matter and there are also contrarian views.

Malaysia’s federal constitution has been altered extensively since our independence in 1957. It seems there have been 51 amendments to-date.

What do we do now?

I guess a forum/discourse to be organised for the KSG to lay down the cards and groups from the ‘other side’ to give inputs. Trying to solve this matter through the media will confuse the rakyat.

Both group would do well not to follow the adage ‘If all you have is a hammer, everything looks like a nail’.The conclusion could be either ‘we agree to disagree’; we come to a compromise or one group says sorry - arguably the most difficult word to utter.

Any takers to organise and for a moderator?

We could then see who are the real moderates...