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Malaysia: Legislative Proposal to Use Hudud in Penal Code

(June 2, 2016) On May 26, 2016, draft legislation that would incorporate Islamic criminal law in the country’s Penal Code was proposed in Malaysia’s Parliament by Abdul Hadi Awang, the head of the Pan-Malaysian Islamic Party, an opposition political group, with support from the ruling Barisan Nasional coalition. The legislation, due to be debated this October, would replace current provisions applied in Sharia courts with the harsher penalties traditionally permitted by Islamic hudud law, such as stoning and amputation of limbs.  Sharia courts govern Muslims in Malaysia.  (Zan Azlee, Push for Hudud Law Raises Tensions in Malaysia, CNN (May 31, 2016); Penal Code, Act No. 574 (Aug. 7, 1997, as last amended by Act A147, effective Dec. 31, 2014), LAWS OF MALAYSIA.)

Islam is followed by an estimated 61.3% of the population and is the official religion of the country.  (Central Intelligence Agency, Malaysia, WORLD FACTBOOK (last visited June 1, 2016).)

Background on Hudud

Hudud is the plural form of the Arabic word hadd, and it refers to fixed penalties in Islamic law.  Hadd is used, among other things, for a “prohibition or penalty fixed by God”; it is distinct from punishments on which officials have discretion and refers to “mandatory punishments for certain offenses mentioned in the Quran and sunnah.”  (Hudud, OXFORD ISLAMIC STUDIES ONLINE (last visited June 1, 2016).) Sunnah refers to “[e]stablished custom, normative precedent, conduct, and cumulative tradition, typically based on Muhammad ‘s example” and is also defined as “a primary source of Islamic law.” (Sunnah, OXFORD ISLAMIC STUDIES ONLINE (last visited June 1, 2016).)

Reactions Against the Proposal

A number of political groups in Malaysia have criticized the plan, suggesting it is not consistent with the Constitution.  The Malaysian Indian Congress’s President, S. Subramaniam, said that the Constitution “protects the rights of all Malaysians for equal treatment before the law and [is] against the duality of sentencing.”  (Azlee, supra; Federal Constitution (Aug. 31, 1957/Sept. 16, 1963, as amended to Nov. 1, 2010), LAWS OF MALAYSIA.)  The Secretary-General of the Democratic Action Party, Lim Guan Eng, argued that introducing two separate systems of criminal justice would be unconstitutional and that a draft law that entailed such a major alteration of the Penal Code could not be treated as ordinary legislation.  He stated that the supporters of the bill were “trying to bypass and get around the constitutional requirement of a 2/3 majority by treating this as an ordinary law which requires only a simple majority,” and he suggested that the approach was a strategy to deal with the fact that there are only 137 Muslim MPs, not enough to make up a 2/3 majority.  (Hudud Bill No Ordinary Law, DAP Warns, MALAY MAIL ONLINE (May 30, 2016).)

The argument that creating a separate set of punishments to be applied to Muslims in Sharia courts is unfair was also advanced by Chandra Muzaffar, President of the International Movement for a Just World, a Malaysia-based nongovernmental organization.  Muzaffar said, “[i]f you commit a wrongdoing, your punishment cannot be different from another person.  You have to be fair.  If two people … commit robbery, one gets his hand chopped off and the other doesn’t, it isn’t right.”  (Azlee, supra.)  He added that if a Muslim man were arrested for raping a non-Muslim woman, “[u]nder hudud, the authorities will need to be presented with four male Muslim witnesses and the rapist can argue that he be set free if they are even short of one.  Can you imagine the reality that the non-Muslim victim has to face even if the rape can be proved through DNA testing?”  (Id.)

Sim Kui Hian of the Sarawak United People’s Party also argued against the proposed legislation, stating that all the signatories to the agreement forming Malaysia in 1963 agreed to a secular government and adding that “passing of the bill could motivate Sarawakians to part ways with Malaysia.”  (Azlee, supra.) Sarawak is located on the island of Borneo, across the South China Sea from the portion of Malaysia on the Malay Peninsula, and has a lower percentage of Muslim residents than does the peninsular region.  (The Geography of Sarawak, Sarawak Government official website (last visited June 1, 2016); Azlee, supra.)

Two non-Muslim members of the Cabinet, Transport Minister Liow Tiong Lai and a Minister in the Prime Minister’s Department, Mah Siew Keong, have threatened to resign from their ministerial positions if the draft legislation passes.  (Azlee, supra.)

Support for the Proposal

Naijb Razak, the Prime Minister, has expressed support for the proposal and attempted to answer the concerns of its critics.  He stated that the draft legislation is “not for the implementation of hudud.  It’s just to give the Sharia courts enhanced punishments.  From six-strokes caning to a few more.”  (Id.)  Proponents have also stressed that the new provisions would apply only to Muslims and thus not affect other Malaysians.  (Id.)

Malaysia’s Department of Islamic Development, a government agency commonly known by the abbreviated name Jakim, has published a paper suggesting, however, that all local laws should be harmonized with Islamic principles.  In the Department’s view, the fact that the Constitution establishes Islam as the official religion is an adequate basis for applying Islamic law to all citizens.  The paper further states that incorporating Islamic hudud into the country’s Penal Code would not be unconstitutional.  (Zurairi Ar, Malaysia: Hudud Should Apply to All Malaysians, Jakim Paper Suggests, MALAY MAIL ONLINE (May 31, 2016), Open Source Enterprise No. SER2016053153155640; Constitution, art. 3(1).) The report argues:

It is wrong to think that non-Muslims cannot be [subjected] to Shariah-based laws. How can citizens of a country that exalts Islam as [the] religion of the state assume that it is their human rights to not be placed under the influence of Shariah laws? … This kind of thinking is the same as those who reject the nobility of the Constitution and the sovereignty of the laws.  (Id.)

A Jakim committee report issued in 2014 had also suggested the full implementation of hudud throughout Malaysia, with a plan to accomplish the change in two stages.  During the first stage, a number of federal and state laws would have been amended to allow the implementation to proceed.  Among the changes that would be needed was the expansion of the types of punishments that Sharia courts are authorized to impose.  (Id.)

Background on Jakim

Jakim is the common name for the Jabatan Kemajuan Islam Malaysia, or Malaysian Department of Islamic Development, the agency of the central government charged with planning for and development of matters key to the Islamic community.  Its functions include advancing Islam in the country, maintaining “the purity of faith and the teaching of Islam,” drafting laws and regulations related to Muslims, and creating community development programs.  (Fungsi Jakim, Jakim website (Feb. 8, 2016).)