Hudud Law or Islamic Criminal Law: A Non-Muslim Viewpoint
In every election year, Hudud Law
or Islamic Criminal Law is becomes the major issue. As a non-Muslim I would
like stated my views of this issue in accordance with Malaysian Constitution.
Under Article 3(1) of Federal
Constitution 1957 (FC1957), Islam is the religion of Malaysia. But other
religions many be practiced in peace and harmony in any part of Malaysia. In
Article 3(4), it’s stated that this does not affect the other provisions of the
Constitution.
The official religion of Malaysia is Islam. For Malaysia to become an Islamic state, Federal Constitution is need to be repealed and replaced with Al Quran and Sunnah as the source for our law.
The Constitution under the 9th
Schedule, List II, permits States to make laws for their own states on Islamic
matters such as Islamic law and personal and family law of Muslims - Wakafs, Islamic charitable and religious
endowments, institutions, trusts, charities; Zakat, Fitrah, Baitulmal and other
Islamic religious revenue; Mosques; Determination of matters of Islamic law and
doctrine and Malay customs; The control of propagation of doctrines and beliefs
among Muslims; Islamic Offences: Offences by Muslims against percepts
of Islam except if the matter is in the
Federal List; Syariah
Courts: Establishment of Syariah
courts.
There are limitations on State powers to create Islamic
offences: Only Parliament may
make laws relating to criminal matters. Any crimes in Malaysia will be dealt
with Criminal Procedure Code, Penal Code or other relevant statutes.
Under the Constitution, Syariah
Courts have no jurisdiction or power over Islamic offences unless authorised by
federal law. Under Syariah Courts (Criminal Jurisdiction) Act 1965, Syariah Courts have no power over any State
Islamic offence, such as hudud offences expect for the power to try Islamic
offences so long as the maximum punishments allowed for such offences do not
exceed any combination of: jail term – 3 years; Fine – RM5000; Whipping – 6
lashes.
Therefore Syariah law is very much limited to Muslims involving family
and property matters. If there is no suitable atmosphere to accommodate then
the Hudud Law is literally impossible to implement.
Further to implement Hudud Law in Malaysia, the first foremost act needs
to be done by the ruling party which control the Parliament with 2/3 majority
is to amend the Constitution. To amend the Constitution, one must get an
absolute majority of 2/3rds of the total number of members of each House is
required. This means that for the Dewan
Rakyat at least 148 of its 222 members must vote in favour and for
the Dewan Negara, 47 out of 70 must vote in favour. Further the consent
from the Conference of Rulers is needed if the amendment involves with
the status of Islam in Malaysia.
For an example, in 2008 election, Barisan Nasional (BN) only had 137
members out of 222 members and therefore has not regained the 2/3rds majority
for Constitutional amendments. Before the 2008 election, BN had the opportunities
to make Malaysia as an Islamic s as it’s had 2/3rds majority in the Parliament but
never executed. Unfortunately BN has said that if Pakatan Rakyat (PR) forms
government then they going to implement Hudud Law in Malaysia but this are not
so practical or impossible to implement it.
In a hypothetical situation, if PR regains 2/3rds majority in the
Parliament where the members of DAP and PKR inclusive of non-Muslims obviously
will opposed to such amendments. Therefore it is very unlikely that PR will impose
such law.
In further, to enact such law firstly one has to create an appropriate
environment by declaring Malaysia as an Islamic through the amendments to the
Constitution where the Constitution wills no longer the supreme law of land.
But in reality the implementation of Hudud law in Malaysia is unlikely to
happen as the political parties have no intention to impose it and the process
itself is requires an enormous effort.
In nutshell, this is the ploy of the politicians to gain support from the
‘rakyat’ i.e. people during election by using the racial and religion as the
tools for them to be reelected.
Kuala Lumpur.
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