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Malaysian Hunger for Hudud

By Gamal Nkrumah

2 June, 2016

Let us step back and look at the racial and religious composition of Malaysia in the light of the developments currently underway that necessitate constitutional amendments to institute Hudud laws based on Islamic Sharia law in the country.

Approximately 63 per cent of the Malaysian population is Sunni Muslim and predominantly ethnic Malay. Islamic judges in the country have traditionally been expected to follow the Shafai legal school of Sunni Islam, and no criminal or civil offences are under the jurisdiction of the Sharia courts. Hitherto, the Malaysian civil courts have only not heard matters relating to marriage, divorce, inheritance and the custody of children.

Muslim Malays see themselves in the image of the Shafai school of Sunni Islam. Ominously for the nation’s secularists, Islamist tendencies, be they Hanbali, Wahhabi or from the traditional Shafai school prevalent in Malaysia, are on the rise and becoming part of a national ethos.

Secularists, be they Muslim or non-Muslim, are not in the habit of applauding such developments. Christians, on the other hand, comprise 10 per cent of the Malaysian population and are mainly ethnic Chinese, Europeans, or members of the indigenous tribal peoples. Hindus, mostly ethnic Tamils, constitute six per cent.

It is against this backdrop that protests erupted this week when Malaysian Prime Minister Najib Razak’s government unexpectedly submitted a contentious bill for parliamentary approval that had been proposed by the Islamist Parti Islam se-Malaysia (PAS). A constitutional amendment is hovering over Malaysian skies with the aim of introducing Hanbali hudud punishments, including stoning adulterers to death, amputating limbs for theft, and the strict segregation of the sexes.

PAS leader Abdul-Hadi Awang may consider himself to be a quintessential Muslim, but it seems that few Malaysians agree. This is why Razak appears to many Malaysians to be an Awang sycophant whose actions betray a deliberate attempt to elevate his mentor’s status to that of a saviour who will redeem Malaysia from secularist sin.

The ruling United Malays National Organisation (UMNO) has not said how many leading members of the party support Awang. PAS is trying to get around the constitutional requirement of a two-thirds majority in parliament for the new measures by treating them as part of an ordinary law that requires only a simple majority.

This is in recognition of the fact that there are 137 Muslim MPs (PAS has 14) in the parliament, which is not sufficient to make up a two-thirds majority, as Lim Guan Eng, the leader of the centre-left Democratic Action Party (DAP) of Malaysia, has stated categorically.

The DAP leader noted that the proposed PAS Hudud law bill contradicts the Malaysian Federal Constitution. A two-thirds vote in parliament requires the support of at least 147 MPs, whereas a simple majority needs just 112. Although the set of punishments in the PAS law are in theory not applicable to non-Muslims, many Muslim Malays are secularists who resent having to be subjected to Sharia Hudud law.

Hudud laws, literally meaning “limits” or “restrictions,” are believed by many Muslims to be mandated and fixed by God. Yet, in most of the four Sunni Muslim schools of Islam, Maliki, Shafei and Hanafi, the Hudud punishment can be overturned by the slightest of doubts. Only the Hanbali interpretation of Sunni Islam from which the Wahhabi sect draws its inspiration is more draconian.

Hudud punishments are widely regarded as barbaric in many contemporary Muslim nations, and the punishments, which range from public lashing to publicly stoning to death, amputation of hands and crucifixion, are rarely applied in practice. In adultery, for instance, there are supposed to be four male witnesses before the Hudud punishment can be enforced, which in this case entails being stoned to death.

Sophisticated modern technology such as secret cameras may ironically facilitate the implementation of Hudud in some predominantly Muslim countries. But most ignore the Hudud punishments altogether and dismiss them as barbarous.

Federal laws enacted by the parliament of Malaysia apply throughout the country, and the constitution of Malaysia also provides for a unique dual justice system that includes secular laws much to the consternation of Islamist politicians. Neither side, it is fair to add, has acquitted itself perfectly in the present controversy. But the secularists have the edge in their magnanimity.

The PAS hopes to implement Hudud law in Kelantan, a conservative northern Malaysian state where nightclubs are banned and men and women are strictly segregated. The Hijab, or Muslim headscarf, is obligatory for women in Kelantan. However, in the resource-rich eastern state of Sabah, the main legislation is the Sabah Land Ordinance, and in neighbouring Sarawak it is the Sarawak Land Code. Both states have non-Muslim majorities, and this is reflected in their legal regulations, putting them at a distance from the religious politics of Malaysia.

The latest bid by PAS to press the passing of Sharia Hudud law is stoking fears of further strains on this multi-ethnic, multi-racial and multi-religious Southeast Asian nation. A former British colony, Malaysia’s legal system is based on English common law, and Malaysian criminal procedure is based on the Indian criminal code. The highest court in the Malaysian judicial system is the Federal Court followed by the Court of Appeal. Hitherto, Sharia law only applied to Muslims in personal or family matters.

Secularists, as well as many Muslims and non-Muslims in Malaysia have issued warnings regarding the PAS agenda. If the victim of a rape case, for example, is a non-Muslim and the rapist is a Muslim, or vice versa, which law applies – Hudud or the Malaysian criminal code?

“Another example is insurance laws that do not recognise Hudud. This means that if personal injury claims in a road accident, the non-Muslim insured person will not be covered if the other party is a Muslim and sues under the enactment,” comments Andy Yong, deputy chief of Malaysia’s Gerakan Youth Organisation.

“Do we expect non-Muslim victims to lodge reports at the Islamic Affairs authorities and subsequently be subjected to the Sharia courts if the suspect is a Muslim,” Yong asked of the proposed Hudud laws.

Most Muslim Malaysians do not heed the PAS message, and the Malaysian Chinese Association (MCA), a key party in the ruling coalition, has called the move unconstitutional. Liow Tiong Lai, leader of the MCA, and Mah Siew Keong, president of the Malaysian People’s Movement Party, have both threatened to quit their cabinet positions if the bill were to be passed and implemented.

As a result, the UMNO may be in danger of disintegrating on racial and religious grounds. Yet, the Islamist tendencies in the country do not recognise their own fallibility, even as the secularists of Malaysia may be held back by paranoia.

It would be inaccurate to assume that the secularists in the country have no clout. A lecture by Islamic preacher Zakir Naik scheduled for 17 April at the Universiti Teknikal Malaysia was cancelled on the advice of the police, and the ethnic Chinese community of Malaysia, predominantly non-Muslim, has a considerable stake in the economy.

Malaysia’s economy in 2014-2015 was one of the most competitive in Asia, ranking sixth in the region and 20th in the world, higher than countries such as Australia and South Korea. Malaysia has also developed into a centre of Islamic banking. While the tensions in Malaysia can be soothed by the cautionary tones of the secularists, Muslim or non-Muslim, even so the problems remain.

Malaysian militant Islamist politicians, be they Hanbali or Wahhabi by inclination, will only inflame sectarianism and widen divides in this promising Southeast Asian nation if they continue with their proposals. A reality check is long overdue.