How to implement Hudud based on the Federal Constitution?
It is not undeniable facts that
Article 3(1): Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
Eventhough the Federal Constitution itself allows the freedom of religion to the Malaysian citizens, still the special position of Islam as the religion of the Federation had been safeguarded by the provision of Article 11(4) where it mentions that state and the Federal government may control the propagation of any religious doctrine or belief among persons professing the religion of Islam. In other words, the position of Islam had been safeguarded well in the Federal Constitution which reflects that Islam is the religion of the Federation; that is why the position must be protected.
We also agree that an Islamic state is complete to be called as an Islamic only once the laws which had been provided by the Lawgiver Allah had been implemented as the law of the land. In nowadays position, it seems like Islam had been implemented well in the socio system of
Basically, Hudud in Islamic law, usually refers to the class of punishments that are fixed for certain crimes that are considered to be "claims of God." It consists:
- Zina (Illegal sexual intercourse)
- Highway robbery (Hirabah)
- Qazf (false accusation of zina)
- Drinking alcohol
All these 7 crimes of Hudud had been described their punishment whether in the Quran or Sunnah. The punishment for theft is amputation of hand as had been described in surah Al-Maidah: 38. The punishment for zina is 100 lashes as had been stated in Surah An-Nur: 2. For Hirabah, the punishment is whether kill, cruxify or expelling the person from the state as had been stated in surah . For Qazf, the punishment is 80 lashes as had been stated in surah An-Nur: 3. The punishment for drinking alchol is 80 lashes as had been stated by one hadith of Prophet Muhammad. The punishment for apostacy also had been authorized by the hadith of Prophet Muhammad where the Prophet mentioned that the punishment for aposctacy is kill. While for blasphemy, the punishment is kill as had been clearly stated in surah Al-Hujurah: 9.
We may analyze that what are the reasons for no implementation of Islamic law for all these 7 crimes in Malaysia. Firstly my ground is that the reason of the political ideology itself. The intention to implement hudud is basically based on the ideology of a political movement. The kickstart to establish hudud will be easier if the ruling party in
That is for the political reason which restrain the implementation of Hudud. And the other reason which block the implementation of Hudud is the legal basis which is the Federal Constitution itself. The main reason why Hudud do not have the ability to be implemented in
Article 160: Law includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.
Based on this provision it is clearly stated that the source of law which had only been recognized throughout the Federation are only the written law, the common law and any custom which had been forced of law in this country. Basically some may argue that the word custom in this provision indirectly mentioned about Islam. However this argument may be rebutted by saying that the custom stated in the provision only mention about custom which had been forced by law such as the family law matters, succession matters etc. And as we realize that Hudud had not been implemented, so in other words, the term custom in the provision is not in line with Hudud since it only mention about custom which had been forced by law.
It is also recognized that criminal matters as had been stated under Ninth Schedule of Article 74 is under the jurisdiction of the Federal government. Technically, the hudud matters should be governed under this provision. Supposedly, the Federal government may insert the hudud punishment to the Penal Code if they really want it. However, The problem is that if the Federal government intend to implement hudud laws, still that action is ultra vires with the definition of law which had been already stated in Article 160. Since Article 4 stated that FC is the supreme law of the Federation. So that, the FC must be referred all the time.
And my suggestion is that if we really intend to implement hudud in our country, the first thing that we need to do is by amending the definition of law in the interpretation section that is Article 160 of the Federal Constitution. It does not matter whether we choose to add the Islamic law as one source of laws or, just abolished the other “laws” which had been stated. The definition of law is very important here. It is because if the government of the day intend to apply hudud, the person punished may sue on the ground that the government had ultra vires with the term law provided in the Federal Constitution.
However, an interesting situation is that today the Syariah Courts hold the jurisdiction of two crimes in Hudud which are zina and drinking alcoholic drink. In theory, we may say that the Syariah Courts already have the jurisdiction to provide the hudud punishment for both of this crime. But still, this action may not be done since the Syariah Courts is governed by the Muslim Court Criminal Jurisdiction Act. And Section 2 of this act only provides the maximum punishment of 3 years jail, RM 5000 and 6 lashes. As a result, the State which have the jurisdiction to enact the law for Shariah Courts do not have the ability to impose Hudud.
Even if the Section 2 of the Muslim Court Criminal Jurisdiction Act had been amended, still it may be challenged to ultra vires the Federal Constitution.
Some may argue that Article 76A allows the Federal government to delegate to the state the power to enact laws with the matters in the Federal List. Let’s say the Federal government had delegated the power to the State government. Still, the definition of law must be refered if the State intends to enact Hudud laws. And the enactment is ultra vires the Federal Constitution because the definition of law does not recognize Islamic law as a part of law in
In conclusion, the Hudud may still not be implemented if the term “law” in Article 160 still have not been amended. So as a suggestion here, I would like to propose the idea that if the government of the day ready to implement hudud in this land, the first thing that need to be done is by amending the definition of law in the Federal Constitution. If not, still the action of providing hudud is not legal in the eyes of the Federal Constitution.