“LAW” and “religion” refer to enormous, imperial realms that are, for the most part, considered to be well defined and self-contained.
According to the “secularisation thesis”, a commonplace of post-Enlightenment thought, societies as they modernise move progressively away from religious norms toward a complete regime of secular law that permits only religion that does not impede its administration.
“Hudud” is an Arabic term that refers to Islamic penal law or Quranic punishments.
The Shariah law, which solely applies to Muslims in Malaysia, contains punishments such as stoning for adultery, whipping for abortion and amputation for theft according to jurisprudence-prescribed offences.
However, the term “Shariah law” is commonly misinterpreted.
Many people consider Shariah to be nothing more than a hudud, or penal law, that governs the punishments for criminal offences.
It is critical to dispel this misunderstanding.
The term “Shariah” in Arabic literally means a path or a way. “Shariah” generally means the way or path that Muslims take to lead their lives to be it as individuals, as a society or as a religious community.
Shariah refers to ‘Islamic law’ from the standpoint of jurisprudence, which many people consider to be primarily criminal rules and penalties.
Shariah, on the other hand, is more than just a set of laws; it also incorporates moral, social, and political norms of conduct for Muslims on a social and communal level.
Shariah is essentially practical guidance for Muslims to follow and live by. It is rooted in Islam’s genuine teachings, which apply to all facets of human life.
The Hudud law in Malaysia would limit Malaysians’ fundamental freedoms, with different consequences for Muslims and non-Muslims.
The crime of irtidad (apostasy), for example, violates an internationally recognised precept of religious liberty, which includes the right to choose one’s own religion.
Criminalising apostasy will exacerbate the growing restrictions on Muslims’ ability to exercise their right to religious freedom.
The Hudud protects the rights of Muslims who want to be ruled by an Islamic system; nevertheless, it violates the rights of Muslims who do not want to be governed by the law because they are unable to opt out.
Because hudud exclusively applies to Muslims, it would also mean that Muslims and non-Muslims would be subject to different criminal laws and incur different punishments.
A Muslim who commits theft in Kelantan, for example, can be sentenced to have his limbs amputated under Section 7 of the state’s Hudud Code.
According to the Malaysian Penal Code, a non-Muslim who commits the same theft act faces a maximum seven-year prison sentence and/or fine. This clearly demonstrates a legal imbalance.
Finally, if the hudud law is passed, it will have serious constitutional implications for both Muslims and non-Muslims in Malaysia.
The disparity in punishments between Muslims and non-Muslims will, in fact, increase crime rates among non-Muslims.
Non-Muslims will likely believe that their punishment is not as severe as the Hudud’s, which will stimulate them to commit more crimes.
Since equality is granted to all religions, genders, and races, it should also apply to the law and punishment.
Therefore, the implementation of the Hudud law would put Malaysia’s multi-religious and multi-racial society on a hazardous path if it were to be implemented. – Dec 14, 2021
Neysa Kumar A/L Asok Kumar is a third-year law student at Universiti Kebangsaan Malaysia (UKM) and Dr Nabeel Mahdi Althabhawi is the senior lecturer in the Faculty of Law at the same university.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
