COMMENT When Kelantan first exhibited her zeal in implementing hudud, through the passing of the Kelantan Syariah Criminal Enactment (Hudud) 1993 the same year, and Terengganu in 2002, we knew that something was wrong.

This law, as enacted, required a woman who reports that she has been raped to produce four male witnesses in support of her case, failing which a charge of false accusation, resulting in 80 lashes on conviction, would ensue.

When the self-same legislation subjects a pregnant rape victim to the irrefutable presumption of zina (illicit sex), we were convinced that it was not Islamic.

 

When women were not accorded equal right to be a witness of fact as men under this version of hudud, one would innocuously think that God would not, otherwise, have had to create women.

 

When all the panoply of other laws were enacted at the risk of undermining the worth of women in the name of religion, we defended our faith against this narrow understanding, thinking that God was not God if God was partial and sexist.

Now that the recent news of the most alarming nature has caused an ephemeral, yet massive, political ripple in Terengganu with the sudden swing of allegiance, one would fear that the otherwise would-be ruling party of the day would resume its fetish for hudud that it once relished in.

However, with the three Umno assemblypersons returning to their party, the fear of PAS taking over the state government no longer arises.

Constitutional cleavage writ large

The Federal Constitution, through Article 76A, permits Parliament to expand and extend the legislative power of a state to enact laws on matters that are contained in the Federal List.

While the proponents of hudud rightly argue that the realisation of hudud has formidable legal basis by virtue of the aforementioned authority, it is argued that its ramifications would be constitutionally macabre and that its enforcement will only open to the door to a much confusing constitutional maze.

Assuming a move for a Private Member's Bill on hudud succeeds in Parliament, thereby realising the possibility of its enforcement on Muslims, would that not then pose a serious constitutional issue of flagrant violation of Article 8 of the Federal Constitution on equality before the law if the alleged perpetrators hail from different faiths and are thus tried under different sets of proceedings?

 

The drafters of the Kelantan Hudud Enactment had, in 1993, declared that a Muslim who is convicted under it will not suffer from another trial for the same offence under the Penal Code. Such unfounded guarantee notwithstanding, it must be borne in mind that the decision to prosecute, or to discontinue the prosecution, rests with the discretion of the public prosecutor by virtue of Article 145 of the Federal Constitution.

It is worth noting that this gives rise to the double-jeopardy dilemma in the event that the public prosecutor sees fit that the alleged perpetrator be charged in the civil court.

Also, with the implementation of hudud as a creature of Article 76A of the Federal Constitution, crystallised through a Private Member’s Bill, it is submitted that Schedule 9, List II, Paragraph 1, which serves as a cauldron of authority for the syariah court to exercise its jurisdiction to the exclusion of that of the Federal List, would be of no practical relevance, assuming the working of Article 76A of the Federal Constitution overrides the (in)famous Schedule 9, List II, Paragraph 1 of the same document.

Judicious wisdom of Federal Court needed

At this juncture, the judicious wisdom of the Federal Court is of crucial importance. In exercising its power under Article 130 of the Federal Constitution, the Federal Court has the opportunity to clear the air once and for all, with considerable regard for the interest of the public, on the constitutional workability of hudud.

On the same score, my personal question is whether the Federal Court would be empowered (and emboldened) to declare a provision in the Constitution unconstitutional by reason of contradiction, in both spirit and essence, with another provision of the same sacred document, that is, the working of Article 76A itself, as against other provisions on fundamental rights.

It is asserted with the greatest respect that any legislative means must be subordinate to fundamental rights.

One may conveniently promise the Earth, the moon – the whole kit and caboodle, but in the end, the capability to honour such promise is not a question of choice. It is, and always has been, a question of legal authority.

 Defining Islam to pander to political whims

The recent rekindled passion for hudud after its comforting hiatus has had many human rights advocates standing akimbo in protest against such a move. With so many proposed laws that are discriminatory against women, one would be pardoned in mistakenly believing that imminent harm might betide those subscribing to the laws of God.

The prevailing fear lies not in the religion itself. Rather, such perennial concern is founded upon the version of which politically-interested stakeholders are keen on defining Islam to pander to their political whim and fancy.

Section 9 of the Terengganu Enactment states that a woman who alleges rape can be guilty of making a false accusation (qazaf) and be whipped 80 times if she cannot prove otherwise.

In this regard, it appears most surprising for many that PAS, which in its constant claim to be the devoted champion of Islam, takes a complete turn and decides to define the Quranic verse with respect to false accusation in the most ruthless manner.

This is by imposing the onus on the rape victim to prove her case against the accused malefactors by demanding four male Muslim witnesses to buttress her allegation.

Not only does such selective reading run counter to the true spirit of Surah An-Nur 24:4, which principally seeks to protect rape victims from slanderous allegation of adultery, it also, to a larger extent, implies that half of the population in Malaysia who are not Muslims will not be qualified to be a witness of fact.

Similarly, nothing can help allay one’s fear when looking at Section 46 (2) of the Kelantan Hudud Enactment, which states that “in the case of zina, pregnancy or delivery of a baby by an unmarried woman shall constitute evidence on which to find her guilty of zina and therefore, the hudud punishment shall be passed on her unless she can prove to the contrary”.

In such situation, the role of the state, instead of protecting the interest of the citizenry by initiating the proceeding against the perpetrators in defence of the rape victims, turns to charging these unfortunate women with a crime of illicit sex, the burden of which lies on the shoulders of the women to prove otherwise.

 

The appreciable contradiction of these man-made provisions with the actual letter and spirit of the divine text falls flat on the face of PAS leaders, who are persistent in their efforts to instil fear by using religion to sanctify their political chicanery.

It is already an open secret that Allah and Islam are often used as a masquerade to induce the people into unnecessary silence and blind submission.

 

If these words of God are interpreted only to exacerbate the already growing ember of injustices among  human beings, let us all venture into a guess and tell who the real culprit is - who deserves the unmitigated wrath of God for betraying women victims: the one interpreting them, or the one fighting against them?

It is neither Allah nor Islam that we must stand up against in hudud. Rather, it is the distorted version of Islam silhouetted against the façade of religion that all must rally together and continue to battle on.

It is conceivable that no change of the legal framework is necessary, simply because the current justice system is allegedly replete with flaws.

Even if it is, are we all not taught not to throw something away without fixing it first?

Let us all join forces to bring about compassion, mercy, and justice. That’s part of Islam too. Forget that not.

AZLAN ABDUL RAZAK is a practising lawyer who describes himself as a fervent advocate for women's rights.