FOCUS With any piece of legislation or public policy, one could look to other countries with similar rules for an inkling of what could lie ahead.

Kelantan’s recently amended Syariah Criminal Enactment II 1993 - commonly referred to as the Kelantan hudud - is no exception.

There are 49 Muslim-majority countries in the world, and while most of these countries have enacted Islamic family law that is applied to Muslims, only about 11 have chosen to pass hudud, which falls under the Islamic criminal offences legislation.

Punishments under offences labelled as hudud (plural for hadd, which means limit), are prescribed in the Quran for four crimes - theft (sariqah), illicit sex (zina), false accusation (qazaf), and highway robbery (hirabah).

In ‘Islamic Law in Malaysia: Issues and Developments’, Islamic jurisprudence scholar Mohd Hashim Kamali says the Kelantan hudud enactment has expanded its scope of hudud to include two other offences.

In his book, Mohd Hashim, a former professor of law at Universiti Islam Antarabangsa, and now chief executive of the Institute of Islamic Studies (IAIS), says punishment for crimes of intoxication (syurb) and apostasy (irtidad) were not outlined in the Quran but gleaned from the hadith (sayings attributed to Prophet Muhammad) and jurisprudential references (fiqh books).

Mapping hudud

Countries that have hudud in their statutes include Saudi Arabia, Iran, Afghanistan, Sudan, and the latest being Malaysia’s neighbour, Brunei, which passed its version just last year.

In addition to these countries, hudud is also implemented in the Aceh province of Indonesia, in about a dozen states in Nigeria’s Muslim-majority north, and most of the United Arab Emirates (UAE), except for the emirates of Dubai and Ras al-Khaimah.

One of the key arguments used to support the implementation of hudud - which provides for punishments such as amputation of limbs and stoning to death - is that it addresses crime.

Proponents say these harsh penalties have a deterrent effect.

To aid understanding on this issue, it is useful to compare crime and the level of violent crimes in some of the countries in which hudud has been implemented.

Malaysiakini uses data given by thinktank Economist Intelligence Unit ( EIU ), as well the latest available figures from the UN Office on Drugs and Crime ( UNODC ) as the basis for comparison.

The EIU report, as quoted by the group that calculated the Global Peace Index, provides a survey of the level of perceived criminality in society and the level of violent crime in each country.

In addition, UNODC records include the rate of reported theft and robbery, crimes that are specifically targeted under hudud, for which statistics are more readily available.

The UNODC differentiates the two based on whether force or threat of force is used to deprive another person of his property, but excludes motor vehicle theft and extortion.

How does Malaysia fare in this? Malaysia scored “2” and “2.5” out of 5 on the two EIU indexes respectively (a lower score indicates lower levels of crime).

Meanwhile, the latest UNODC figures are for the year 2006, with 141.0 incidents of reported theft and 81.4 incidents of reported robbery per 100,000 population.

Brunei

Perceived criminality: No data

Violent crime: No data

Rate of reported theft: 303.2 per 100,000 population (2006)

Rate of reported robbery: 0.5 per 100,000 population (2006)

Brunei has been implementing syariah criminal law in three stages since May last year, and is currently at its first stage.

Offences currently include failure to perform Friday prayers, disrespecting the holy month of Ramadan and indecent behaviour. The latter two offences apply to both Muslims and non-Muslims.

(Note: the three offences listed above are already provided for and are being enforced under syariah criminal enactments in many states in Malaysia)

The next two stages are slated for implementation by the end of 2016, and would include more serious offences such as theft, robbery and blasphemy, as well as harsher penalties that include death by stoning.

The passage of the law made international headlines, as well as calls to boycott luxury hotels linked to Brunei Sultan Hassanal Bolkiah, a key proponent of the Syariah Penal Code.

The law made headlines again on Christmas Eve last year, when enforcement officers ordered businesses to remove their Christmas decorations.

The Ministry of Religious Affairs of Brunei later issued a statement warning Muslims against celebrating non-Islamic festivals, and warning non-Muslims against celebrating religious festivals openly.

“The act of publicly displaying festivities of religions other than Islam can be seen as propagation of religions other than Islam, and it can amount to an offence under Section 209 (1) of the Syariah Penal Code Order, 2013, that is propagating religion other than religion of Islam to a Muslim,” it said, as quoted in the Borneo Bulletin .

Pakistan

Perceived criminality: 3 (Moderate)

Violent crime: 4

Rate of reported theft: No data

Rate of reported robbery: No data

Syariah criminal law was introduced in Pakistan in 1979 as a set of laws collectively known as the ‘Hudood Ordinances’, which replaced parts of a secular penal code inherited from British colonists.

It has been a target for women’s rights campaigners since, because the provision dealing with illicit sex (zina) does not distinguish between rape and consensual sex and thus, both cases require the testimony of four pious Muslim male eyewitnesses to the act of penetration in order to secure a conviction.

As a result, depending on the circumstances, a victim reporting rape may be seen as admitting to illicit sex and tried accordingly, and in addition may face charges of qazaf (false accusation of zina) if she cannot produce the eyewitnesses.

Kelantan’s hudud enactment also does not appear to make the distinction between zina and rape.

The National Commission on Status of Women in Pakistan reportedly found, in 2003, that 80 percent of women in prisons in the country were there because they failed to prove their rape charges and had therefore been convicted for zina.

In a 2007 report after reviewing the Hudood Ordinances, the Council of Islamic Ideology, which is a Pakistani government body advising its legislature on Islamic legal matters, also found that the laws were ineffective in tackling crime.

“Statistics show that Hudood Ordinance has not been effective in reducing the crimes in Pakistan.

“Although the number of registered cases is not a proper indication of crime statistics, but even that shows the rate of hudud crimes has not decreased,” the council said in its report.

Nigeria

Perceived criminality: 5 (Very high)

Violent crime: 5

Rate of reported theft: 13.4 per 100,000 population (2012)

Rate of reported robbery: 1.8 per 100,000 population (2012)

Hudud was introduced in 12 out of 36 states in Nigeria, where Muslims make up the majority of the population, starting with Zamfara in 1999. The other states use a penal code inherited from the British.

Like the Kelantan enactment, syariah laws in Nigeria apply to Muslims only, but unlike Kelantan, non-Muslims can also opt to be tried under syariah law, if they wish to.

According to Abuja High Court chief justice Ibrahim Bukar in 2013, in an email quoted by Malaysian chief justice Abdul Hamid Mohamad in a speech last year, the law is fraught with problems of implementation and thus cannot be enforced effectively.

“The system was introduced in those states rather hastily and more for political gains than for its importance or the need for it. Added to that, the idea was conceived by the states and introduced in their respective territories without consultation or input from the federal government…

“Most legal practitioners are not versed in (syariah). That too is a minus to its successful take off. On the whole therefore, the (syariah) criminal justice is, because of these factors and more, cannot be said to be a successful venture,” the Nigerian judge Ibrahim reportedly said, according to Abdul Hamid.

Law scholar Aminu Adamu Bello, who is based at Abuja University’s Law Faculty, found similar problems, and that these are compounded by conflicting jurisdiction between syariah and common law systems.

Hudud in Malaysia may also run into similar problems if implemented, as both Malaysia and Nigeria have similar legal systems.

Already, child custody battles in Malaysia involving the conversion of minors have highlighted such issues, with syariah and civil courts issuing conflicting custody orders.

In addition, as Bello said in a 2010 paper, crime data do not support claims that laws have any effect on antisocial behaviour, even on crimes such as theft.

He called for, among others, a moratorium on the enforcement of hudud, and for a new school of law to ensure legal professionals have adequate training in Islamic law.

“The moratorium may last for a period, up to when the level of poverty is reduced or the relevant Islamic socio-economic institutions have taken firm root and are flourishing,” Bello added.