hudud – a nation at the crossroads

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HUDUD – A NATION AT THE CROSSROADS

CENBETCENTRE FOR A BETTER

TOMORROW

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CENBET – CENTRE FOR A BETTER TOMORROW

Themes of Talk

A. Position of Islam under the Federal Constitution (“FC”)

B. Islamic Criminal Law under the FC

C. What is Hudud

D. Why Hudud

E. Hudud Elsewhere

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Position of Islam under the FC

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Judicial Thoughts – Year 1988

Che Omar bin Che Soh v PP [1988] 2 MLJ 55 (SC)

Key statements by Tun Salleh Abas LP: “The (islamic) law was only applicable to Muslims as their personal

law.”

“During the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic Law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only.”

“It is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. if it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void.”

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Meor Atiqulrahman bin Ishak dan lain-lain v Fatimah bte Sihi dan lain-lain [2000] 5 MLJ 375 (HC)

Observation by Mohd Noor Abdullah J (as he then was), in the original language, Bahasa Melayu:

“Islam ialah ugama bagi Persekutuan tetapi ugama-ugama lain boleh diamalkan dengan aman dan damai' bermakna Islam adalah ugama utama di antara ugama-ugama lain yang dianuti di negara ini ... Islam bukan setaraf dengan ugama lain, bukan duduk berganding bahu atau berdiri sama tegak. Ia duduk di atas, ia berjalan dahulu, terletak di tempat medan dan suaranya lantang kedengaran. Islam ibarat pokok jati — tinggi, teguh dan terampil.”

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The “Allah” Case (Civil Appeal No. W-01-1-2010)

Judgment by Mohamed Apandi bin Ali (JCA):

“[31] It is my observation that the words “in peace and harmony” in Article 3(1) has a historical background and dimension, to the effect that those words are not without significance. The Article places the religion of Islam at par with the other basic structures of the Constitution, as it is the 3rd in the order of precedence of the Articles that were within the confines of Part I of the Constitution...”

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Islamic Criminal Law under the FC

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What is Hudud?

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6 Offences under Hudud Law(based on the Hudud Bill passed by the State Legislature of Kelantan in 1993)

Offence Punishment Evidence RequiredAdultery • Stoning to death for a married person

• Whipping of 100 lashes + 1 year imprisonment for the unmarried

• 4 eye-witnesses to prove the act of adultery

• All witnesses MUST be adult male Muslims of just character

Theft • 1st offence: amputation of the right hand from the wrist;

• 2nd offence: amputation of the left foot (in the middle in such a way that the heel may still be usable for walking and standing)

• 3rd & subsequent offences: imprisonment for such terms as in the opinion of the court are “likely to lead to repentance”

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Offence Punishment Evidence RequiredSlanderous Accusation

80 lashes of the whip if the accuser is unable to prove by 4 witnesses

Highway Robbery • Death• Crucifixion if the robbery is

accompanied by killing

Wine Drinking Whipping: 40 lashes (min) & 80 lashes (max)

Oral testimony of 2 persons

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Offence Punishment Evidence RequiredApostasy • To repent within 3 days

• If reluctant to repent, death penalty and forfeiture of his/her property

• If he/she repents after the conviction, the offender will be free from death sentence and the property will be returned to him/her, but he/she will be liable to imprisonment of < 5 years.

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Why HududBasis for Terengganu’s and Kelantan’s Support for Hudud

Source: Tuaa Haji Abdul Hadi bin Haji Awang’s speech in the 8th Parliament 3rd Session of the House of Representatives (2nd November 1993)

Its psychological effect:Its psychological effect:“hukuman itu benar-benar menggerunkan bakal-bakal penjenayah sehingga dia memberhentikan hasrat untuk melakukan jenayah;”

““[I]a memberi penekanan dalam dua aspek”[I]a memberi penekanan dalam dua aspek”“Yang pertama, aspek spiritual, rohani, menimbulkan keinsafan - adanya pengawasan Allah yang Maha Mengetahui sehingga tidak boleh disembunyikan, termasuklah segala yang tersirat dalam hati manusia. Yang kedua, aspek zahir melalui tindakan undang-undang oleh Kerajaan dengan keterangan-keterangan dan syarat-syaratnya yang ketat dan tegas. Kesemua undang-undang Islam itu merangkumi segala aspek yang perlu dalam kehidupan manusia.”

Widely accepted by Muslims and non-MuslimsWidely accepted by Muslims and non-Muslims“Kesemua undang-undang ini pernah dilaksanakan dengan cemerlangnya dan diterima bukan sahaja oleh orang-orang Islam, bahkan diterima juga oleh orang-orang yang bukan Islam yang merasai betapa baik kesannya”

“undang-undang Islam ini telah mewujudkan keadilan, keamanan yang mutlak…”

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Why Hudud Cannot be Implemented

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“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

International Covenant on Civil and Political Rights: Article 7

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Global Peace Index Score (‘GPI’):Countries where Sharia applies in full

(personal status issues & criminal proceedings)

• GPI scores are given a normalised score on a scale of 1-5, 1 being the score for “more peaceful” to 5 being the score for “less peaceful”.

Country 2013 2012

RankOut of 162 countries

Global Peace Index Score *

RankOut of 158 countries

Global Peace Index Score *

Afghanistan 162 3.440 156 3.336

Iran 137 2.473 132 2.417

Iraq 159 3.245 155 3.227

Pakistan 157 3.106 153 3.000

Malaysia 29 1.574 30 1.590

Nigeria 148 2.693 146 2.707

Saudi Arabia 97 2.119 108 2.214

Sudan 158 3.242 157 3.398

Yemen 152 2.747 145 2.697

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Hudud Elsewhere

Source: M Farooq, Rape and Hudood Ordinance: Perversions of Justice in the Name of Islam, (2006).

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Hudud Elsewhere

More than More than 70 %70 % of women in police custody were subjected to rape by police of women in police custody were subjected to rape by police officials.officials.

“Women were kept in lock ups for days without formally registering a case against them or producing them before the magistrate within prescribed 24 hours period. Most sexual abuse of women detainees occurred in this period of invisibility.”

Source: Dorothy Thomas of Human Rights Watch in her article in 1992.

Up to Up to 90 %90 % of recorded rape victims were in jail because they failed to produce of recorded rape victims were in jail because they failed to produce credible witnesses to support their charges of rape.credible witnesses to support their charges of rape.

Source: M Polk, ‘Women Persecuted Under Islamic Law: The Zina Ordinance in Pakistan as a Basis for Asylum Claims in the United States’ (1998) 12 Geo. Immigr. LJ 379.

19921992

19961996

There were an estimated There were an estimated 2,200 women 2,200 women prisoners in Pakistan, most of whom were prisoners in Pakistan, most of whom were awaiting trial or were convicted under the Hudud laws.awaiting trial or were convicted under the Hudud laws.

Source: The Human Rights Commission of Pakistan

20022002

20062006 Human Rights Commission Report 2006Human Rights Commission Report 2006-Women aged over 70 years to girls as young as 11 had been imprisoned on charges of zina.-Each year, over 1500 cases were registered against women.

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Hudud Elsewhere

Sudan Human Rights Organisation:

In issuing its “Memorandum of Urgent Appeal to Stop the Killing of a Christian woman by Sharia law and Government Political Abuse”, the Sudan Human Rights Organisation demanded the abolishment of the Hudud penalties by repealing the Sudan Penal Code 1991:

“The Sudan Human Rights Organization has repeatedly asked the Government of Sudan to abolish the Sudan Penal Code 1991 because it contradicts international human rights standards and applicable norms. For the majority Muslims of Sudan, the Sudan Penal Code 1991 is a primitive law…”

NCSW, a statutory body and oversight body to review policies, unjust practices and laws affecting women in Pakistan urged for the repeal of the Hudood Ordinance in Pakistan.

Source: Source: ‘Study to Assess Implementation Status of Women Protection Act 2006’ , National Commission ‘Study to Assess Implementation Status of Women Protection Act 2006’ , National Commission on on the Status of Women: 2006the Status of Women: 2006

National Commission on the Status of Women in Pakistan

A non-governmental organisation asked for the repeal of the Hudood Ordinance in Pakistan and gender discriminatory laws against women.

The Pakistan Women Lawyers Association (PAWLA)

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Sarawak’s 18-Point and Sabah’s 20-Point Agreement

“In the case of Sabah and Sarawak, the constitutional safeguards for their special interests upon joining Malaysia, as equal partners, with the States of Malaya, are largely in tact, although there have been occasional murmurs from the Sabah front that the “20 Points” Memorandum (not the Malaysia Agreement) was not fully honoured. In any event, the recommendations of the Cobbold Commission that “no amendment, modification or withdrawal of any special safeguards granted should be made by the Central Government without the positive concurrence of the State concerned” had been accepted in good faith and complied by the Federal Government.

…

It is acknowledged that the Malaysia Act 1963, which amended the Constitution to entrench the safeguards for the Borneo States, and to place them to a position of a better protection than the original Malayan States in the Federation…”

Source: JC Fong, Constitutional Federalism in Malaysia (Sweet & Maxwell Asia: 2008, p 271)

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Sarawak’s 18-Point and Sabah’s 20-Point Agreement

18-Point & 20-Point Agreement18-Point & 20-Point AgreementPoint 1: ReligionWhile there was no objection to Islam being the national religion of Malaysia there should be no State religion in [Sabah/Sarawak], and the provisions relating to Islam in the present Constitution of Malaya should not apply to [Sabah/Sarawak].

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Constitutional Right: Religion in Sabah and Sarawak

Article 161E - Safeguards for constitutional position of States of Sabah and Sarawak

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(2) No amendment shall be made to the Constitution without the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak or each of the States of Sabah and Sarawak concerned, if the amendment is such as to affect the operation of the Constitution as regards any of the following matters:

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(d) religion in the State, the use in the State or in Parliament of any language and the special treatment of natives of the State;

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Lim Chee Wee

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hudud – a nation at the crossroads

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