RAISING TA’ZIR PUNISHMENTS, HUDUD, AND QISAS

Although many conservative Muslim ulama and civil servants fill positions in the government Islamic bureaucracy, there are intense ongoing contests over the current implementation of sharia criminal laws and proposals to ratchet up penalties or to fully enact a hudud and qisas penal code.

Muslim and secular human rights NGOs and supporters are also critical of both the controversial “gray areas” in which sharia law affects non-Muslims and the unfair enforcement of sharia criminal laws along gender and class lines. Norani Othman pointed out in my discussion with her that in Malaysia’s “multiracial and multireligious society people live and interact as fellow human beings,” so Muslims and non-Muslims are often implicated together when it comes to both sharia family and criminal laws. She views these “controversial gray areas” as unintended consequences of “the Islamization policy under Dr. Mahathir” and “the global resurgence of political Islam” that has affected Malaysia. SUARAM also pinpoints the dominant “conservative sector” of Muslims as both stifling interfaith dialogue between Muslims and non-Muslims and targeting human rights advocates. They are concerned about areas in which members of Malaysia’s diverse society collide in controversies over conversion, religious status, and the religious freedom of non-Muslims. These human rights NGOs are also critical of gender and sexual discrimination in sharia criminal laws and enforcement that stresses the “indecent” attire of women in public and restricts “cross-dressing” (SUARAM 2009, 120–21).

Similarly, the “drama of contention” that captured public attention surrounding the case of Kartika Sari Dewi Shukarno, a thirty-two-year-old Malaysian woman caught drinking alcohol in a nightclub in Pahang, entailed local and international outcry.¹⁰ Kartika pleaded guilty of drinking alcohol and was fined RM 5,000 and sentenced to six strokes of the rattan.

Furthermore, many activists are critical of what they consider class bias in the enforcement of sharia criminal laws. One of the cases often mentioned as exemplifying such bias is that of Nazarudin Kamaruddin, a forty-six-year-old lower-class Indonesian with permanent residency in Malaysia. Islamic authorities in Pahang caught him consuming alcohol in public during Ramadan, and Hakim Abdul Rahman Mohd Yunos, the same judge that sentenced Kartika, sentenced him to one year in jail and six strokes of the cane. According to a newspaper report Hakim Abdul Rahman was quoted as saying, “The sentence meted out to him is not meant as a punishment but to serve as a lesson” (Jakarta Globe 2009). There would be no last-minute commuting of his sentence. On November 12, 2009, his caning was carried out and he was subsequently sent to jail. Referring to this case, Norani Othman told me, “Look, we all know, the upper classes, the British and the sultans, are free to drink and to party, you know, and to do whatever, and that is fine, it’s a personal thing, but then to be unnecessarily harsh to this Indonesian worker who drank...

In addition to rejecting the charge that sharia criminal laws and enforcement unfairly discriminate against women and sexual minorities, the sharia judicial figures I interviewed disputed the contention that personal transgressions of Islamic ethical norms should be outside the purview of state-enforced laws. For instance, when I posed to Negeri Sembilan chief justice Dato Hj. Hussin b. Hj. Harun the liberal rights activists’ argument that the state should leave these matters for individuals to work out on their own, he responded:

I think people that look at things that way are actually just stressing the importance of their own individual selves. There are Muslims who drink alcohol, but actually they know drinking alcohol and other mistakes are enjoyable. Yet, from the perspective of the soul, if we are certain and believe in all the things commanded by God and Rasulullah [the Messenger of Allah], then we must put aside all the things they prohibit. This is really the direction they have to follow. Then the responsibility of the government is that it must watch over this. [It] must give guidance to the Muslims under [its] command who drink alcohol and put themselves into a condition of drunkenness, even if just a little, or we don’t know how much, they still can’t be allowed to do this.... Actually, those people who complain that human rights are being violated are in effect challenging religion.... How can Muslims be allowed to drink alcohol when it is forbidden in Islam? Behaviors like that are violating and ruining religion.... The respect of religion must be defended.¹³

In the dominant view of the sharia judiciary Muslims must follow the commands of Allah and His Messenger, Prophet Muhammad, and it is the state’s obligation to menjaga, or take care of implementing the hukum (laws) from sacred sources.

The issue that arises is that some say that these punishments violate people’s human rights. It is not a basic human right to violate the rights of others. When we look at Malays, the constitution places Islam as obligatory for Malays. When they follow Islam, they must obey the regulations of Islam. Under Islamic regulations, zina is prohibited, drinking alcohol is prohibited, and Muslims are obligated to obey these rules. When they don’t obey these regulations, then they are violating the rights of Islam. They are violating my rights. I am a Muslim. Islam prohibits the drinking of alcohol; if a Malay person drinks alcohol they are violating my rights.... If a student breaks the rules at a university, they break the rules and violate the rights of other students.... From the perspective of rights, we respect the basic rights of people.... This is the reason we make laws to regulate the behavior of people in their everyday lives, in religion, in the country, in society, in the family, and as individuals as well. Let’s say I am in my home, which is a personal space. In society, I am obligated to attend Friday prayers in the masjid. Islam makes Friday prayers an obligation, which is a social affair. In the country, I am obligated to pay zakat [tithe] to help other people.¹⁴

According to Cik Abu Bakar, there must be restrictions on individual rights in order to protect the rights of others. It is out of concern for basic human rights that Islamic laws must extend from individual spaces to broader social spaces out to the realm of the nation-state and global Islam. Similarly, Kedah Shariah Chief Justice Dato’ Wira Sheikh Yahaya spoke of the hikmah (wisdom) in Islam to guide social relations along a harmonious course.

We have relations and connections with other people in society, and must be concerned about the burdens we place on others.... Islam provides hikmah so that people do not harm anyone else badly and so we collectively communicate about what is the best for society. We each speak out, and express our opinions, about what is the best for society. To me, we do not just live in this world as isolated individuals, not just by ourselves. We must remember hablum-minannas hablum-minallah hablum-minannas.... We have a relationship with Allah and, on the other hand, we have a relationship with humans. We still have to live in harmony. We cannot run from humanity.... We don’t desire to run; we desire to be perfected by Allah Subhaana wa Ta’ala [the Glorified and Most High].

Here again, unlawful acts of sexual intercourse, consumption of alcoholic beverages, and other violations of Islamic laws and norms are viewed from the perspective of the damage they can have on the rights of family members and others in society, and therefore these rights must be protected through wise sharia laws that prohibit such harmful acts. Individuals are not viewed as isolated and primarily ensconced in their private lives, but rather in terms of their relationships with other people (hablum-minannas) and with Allah (hablum-minallah). Islam provides the regulations to direct people along the proper course that will keep them from harming the interests of others. Furthermore, he suggests that following the commands of Allah in our relations with people, instead of retreating into our private indulgences and away from humanity, places us on the path to perfection.

The contra-sharia criminal law discourses of Muslim and secular human rights activists pose a public challenge to fundamental beliefs of the dominant conservative Islamic worldview in Malaysia. These discourses are antagonistic and uncompromising. Rather than making calls for lowering the levels of discretionary punishment, they charge that those punishments’ very presence violates basic human rights such as freedom of religion and conscience and claim that sharia criminal laws should be repealed. Some challenge gender and sexual distinctions and the proscription of cross-dressing in traditional Islamic values. Moreover, they suggest that many classical forms of punishment are inappropriate in the contemporary world and argue that more authority should be returned to civil courts and laws. These sorts of public discourses hit at the heart of traditional sharia models that entail notions of eternal directives from sacred sources, which believers must obey and religious authorities must establish. Such challenges to Islam and the legitimacy of Malay and Muslim authorities circulating in media provoke responses from the broader Malaysian Muslim community as well as Malay political elites and religious officials. Kamali (2000, 310) notes that it is generally the case in contemporary Malaysia that “political uncertainty and turbulence tends to enhance the role of the conservative forces in society. Since the Malay community dominates the Malaysian government, there tends to arise a greater need to preserve Malay unity in times when this might be seen to be under threat. Under such circumstances, Malaysian leadership is likely to increase its Islamic orientation.” This is even more the case in the second decade of the twenty-first century than it was when he was writing. However, it is unclear at this point whether the Malay political elites and conservative Islamic forces will unite behind a drive to raise the level of sharia jurisdiction and discretionary punishment and to implement a hudud and qisas code in Kelantan.

Yet, my research indicates that many government ulama are pushing for an increase in the sharia court jurisdiction and takzir penalties and are in favor of an eventual implementation of hudud and qisas in Malaysia. The chief justice of the Negeri Sembilan Shariah Court responded emphatically to my question about whether hudud should be applied in Malaysia: “It must be implemented.” Similarly, the chief justice of the Federal Territories Shariah Court, citing the constitutional expert Aziz Bari, told me that there were no constitutional impediments to the implementation of hudud in Malaysia.¹⁵ He expressed the view that hudud and qisas can be implemented in Malaysia if there is the political will to do it. Likewise, a sharia court judge told me, “Actually, in our society, it is not so easy to implement hudud, unless the prime ministers or the top management of the government [are] really, really religious.” Datuk Haji Mohamad and some other judges also spoke favorably of the establishment of hudud codes in Nigeria, Sudan, and in the province of Aceh in neighboring Indonesia and recently in Brunei Darussalam.¹⁶ Judges emphasized the positive effects of a hudud penal code on the deterrence of criminal infractions, as exemplified by the criminal offense data they received from Sudanese officials during their visit to the Federal Territories Shariah Court. Moreover, government ulama view the spirit of hudud as being already present in the limited discretionary punishments, which prepares the road for stricter penalties. For instance, Hakim Shukri, a lower court judge in Melaka, stated, “Now everything is takzir. Whatever we can get we implement, although we truly have the clear procedure and law, like hudud, which is definitely strict. But from the spirit of the laws we have will grow hudud. There will be hudud. Because we have low fines, they can be raised... the fines are takzir. We have to understand that the spirit connected to these laws point us to hudud.” A gradual increase in discretionary punishments can eventually arrive at the same penalties as prescribed by hudud in classical Islamic jurisprudence. This appears to be exactly the course many government ulama have been advocating in recent proposals to Malay political elites and to the Parliament.

Rather than moving toward softening the intrusion of the state into violations of Islamic precepts, government ulama have gone in the opposite direction in the face of ongoing public disputation from liberal Muslim reformers and human rights activists. Professor Dato’ Dr. Zaleha, deputy director of IKIM, informed me that the government is trying to improve the three-five-six takzir limits, making them “more stringent, more strict,” so that sharia will be respected.¹⁷ In 2012, sharia court judges and civil servants in the Prime Minister’s Department told me they had prepared a proposal to “upgrade” the status of the sharia court jurisdiction and court officials, bringing them on par with that of civil courts. Their plan would raise the level of punishment allowable in sharia jurisdictions, making it “just like hudud.” The issues of overlapping jurisdictions would also be worked out in this amendment to the Federal Constitution. Cik Noor, a researcher in IKIM, suggested that the jurisdiction of the sharia courts would be raised to the same level as civil courts so that sharia judges can sit with corresponding civil judges to deliberate together and issue joint rulings pertaining to cases with overlapping jurisdictions, such as family law cases that involve Muslim and non-Muslim parties. Later, in 2014, the minister in charge of Islamic affairs, Datuk Seri Jamil Khir Baharom, announced that the plan to upgrade the three-tier sharia judiciary system to a five-tier system is nearing its conclusion, since it’s been agreed on by all the states. The proposed new system would shift the current Sharia Subordinate Court, Sharia High Court, and Sharia Court of Appeal three-tier structure to five tiers that would run from the Sharia Lower Court, Sharia Middle Court, Sharia High Court, and a Sharia Court of Appeal for each state, to the Sharia Appeal Council, which would be the highest sharia court. However, according to some constitutional experts, to make this five-tier system on par with the civil court system, operating beyond each state boundary, will require a carefully drafted constitutional amendment that would not “offend the basic structure” of the Federal Constitution (Boo Su-Lyn 2014).

In addition, many government ulama have expressed support for the 2015 PAS private member’s bill in the Parliament to amend the Syariah Courts (Criminal Jurisdiction) Act of 1965 to pave the way for implementation of hudud in Kelantan. PAS passed a hudud bill in Kelantan in 1993 and a hudud and qisas bill in Terengganu in 1999, but neither was implemented due to restrictions in federal law and constitutional constraints. In 1994, the Shariah and Hudud Laws Committee of the Malaysian Bar Council announced that Kelantan’s hudud bill was consistent with Islamic law and that its inconsistencies with the Federal Constitution could be overcome by amending the latter document (Kamali 1998, 208). PAS has actively campaigned for several decades around the issue of hudud, even when their opposition coalition partners were strongly opposed to it. The Kelantan state assembly unanimously approved the Shariah Criminal Code (II) 1993 (Amendment 2015) on March 18, 2015. Now, in their new effort to establish a hudud code in Kelantan, PAS found that their allies in the opposition coalition Pakatan Rakyat—DAP and PKR (Parti Keadilan Rakyat; People’s Justice Party)—were committed to not supporting the bill in Parliament. Tensions over the PAS move to clear a path for the realization of a hudud code in Kelantan led to PAS severing ties with DAP in 2015. In contrast, government ulama in JAKIM and IKIM made public statements in support of the PAS effort to amend the federal act limiting sharia jurisdiction, while stressing that the decision rests with the Parliament. Datuk Othman Mustapha, director-general of JAKIM, expressed support for the PAS bill and stated that making this amendment to the federal act has long been part of JAKIM’s efforts “to increase the punishments according to the Al-Quran” (Jamilah 2015). IKIM director Datuk Seri Jamil Khir Baharom also made positive comments about the PAS plan but added the caveat that “the implementation of Islamic law should only be applicable to Muslims in order to maintain stability and national harmony” (Astro Awani 2015).¹⁸

While these supportive statements and broader agreement from many conservative government officials and ulama are significant as a rebuttal to public challenges from liberal Muslim reformers and human rights activists, political backing from the Malay political elites will be required to make any of these amendments in federal and constitutional law. At this point, it does not appear that prime minister Najib Abdul Razak and his government ministers support paving a way for hudud and qisas to be implemented in Malaysia.