Monday, 20 February 2017

Sejauh mana anda memahami Hudud (re RUU35) ?

Hope my readers will give this a good read on the RUU355, it will be worth your while:

Satu forum yang telah dianjurkan oleh Angkatan Amanah Merdeka Malaysia (AAMM) bertajuk 'Sejauh Mana Anda Memahami Hudud' di Dewan Rumah Kelab Persatuan Alumni Universiti Malaya (PAUM) pada Ahad 12 Februari 2017 dimana forum tersebut telah menyaksikan beberapa hujahan yang menyokong dan juga menentang RUU355.

Antara panel forum tersebut adalah; Mufti Perlis Dr Mohd Asri Zainual Abidin, Pensyarah Undang-undang Universiti Teknologi Mara (UiTM) Profesor Dr Shad Saleem Faruqi dan juga Pensyarah Universiti Sains Malaysia (USM) Profesor Dr Ahmad Fauzi Abd Hamid.

Presiden PAS Abdul Hadi Awang sebelum ini telah membentangkan Rang Undang-Undang (RUU) Persendirian Pindaan Kuasa Dewan Rakyat bertujuan meminda Akta Mahkamah Syariah (Bidang Kuasa Jenayah) 1965.

PERLIS Mufti Datuk Dr Asri Zainul Abidin spoke bluntly at a recent forum on religion.

“Gossiping is a big sin in Islam but are there (syariah) laws against gossiping? Do you see the religious authorities sending officers out to haul up those who gossip?’’

He points out that while some things are haram (forbidden) and sinful in Islam, that does not mean that Allah demands for all of these to be punished in a court of law.

In the case of adultery, for example, he says, if there are only three witnesses of good character present and not four as required by the religion, the adulterer would have to be let off.

“Not all sins have to hauled up to court. The religion doesn’t ask us to go and check up on people, from room to room or car to car, asking for their surat nikah (marriage licence) to find out if they are married or not.’’

Citing another example, he says, a powerful and rich person who commits a crime might be able to afford a good lawyer who cleverly argues the case and gets it thrown out of court.

“But that doesn’t mean that because they got away with it in a court of law, they will get away with it in the Court of the Hereafter. God knows everything.

“Muslims believe we will be tried for all our sins. Drinking alcohol, adultery, stealing are all sins. When we die, we will have to face God and answer for whatever we did. There is no escape.’’

Dr Asri was speaking at the “How Much Do you Know About Hudud” forum organised by Angkatan Merdeka Malaysia.

Touching on PAS president Datuk Seri Dr Hadi Awang’s motion before Parliament for the amendments to the Syariah Courts (Criminal Jurisdiction ) Act 355 (popularly referred to as RUU355), Dr Asri said there are concerns it is all part of a political game.

Dr Asri stresses that while the Quran and Sunnah (tradition of the Holy Prophet) are divine, the interpretations are not.

He points out that while hudud (Islamic Penal Code) is mentioned in the Quran and Sunnah, it is not spelt out in great detail with regards to the context and conditions.

So it was left to scholars to deliberate on these.

“Scholars do not always agree so they have different interpretations of things. So which interpretation should you favour? These are not divine.’’

On RUU355, Dr Asri says, the politicians supporting it keep saying it is not the hudud.

“If it is not hudud, then surely we Muslims are allowed to criticise and give our views. So why is it that whoever criticises RUU355 is labelled as going against Islam? How is it that if you oppose the amendments you are said to oppose Allah’s Laws?

“And what are Allah’s Laws? Does it mean that if you increase the penalty for an offence from RM5,000 to RM100,000 that it now becomes Allah’s Law?’’

Dr Asri says even within the country, there are differences from state to state in the way Islamic matters, including polygamy, is dealt with, “so we must be very careful about calling something ‘Allah’s Law’.’’

For him, discussion and debate are essential when looking into the dimension of punishment, because it is not only about implementation but also the conditions, the context, and suitability.

He points out that in the Quran, there is a verse, Surah Al Anfal, which talks about the spoils of war and how they should be distributed, with fighters entitled to their share of them too. But he points out that this is not implemented today, because even though it is in the Quran, the wars of today are different from those in the early days; and soldiers now are paid salaries and allowances.

“Defending the country is jihad (a noble struggle) but we don’t hear any political party in the country asking for a spoils of war law to be implemented because the context in today’s world is different.’’

In a jibe at PAS, he says, “tens of years ago’’ they used to label other Muslims who were not with them as “infidels’’, they described the Federal Constitution as a “Jahiliyah” Constitution (Constitution of Ignorance) and warned Muslims against wishing non-Muslims during their religious festivals because for them that was tantamount to leaving the Muslim faith.

But, he says, PAS has backpedalled now on what it said previously and today it says it upholds the Federal Constitution.

“Allah’s Law should never be politicised. It is difficult when political parties come in and play a role in what they deem is Islamic law.

“When religion is politicised, the discussion is no longer fresh and not the sort that can stimulate rational thinking and a healthy discourse.’’

Dr Asri questions: Why do Muslims have a mentality that says, in order to be Islamic the hand of someone who steals has to be amputated?

This kind of mentality is wrong, he says, adding that these kinds of Muslims understand Islam in a closed-off, secluded and non-holistic manner.

“It is like the IS (Islamic State) mentality, where they think of only punishing and not about developing the place.’’

For him, it is wrong to give the world the impression that justice in a Muslim country is served “when we cut off the hands of those who steal, whip those who commit adultery and punish those who drink alcohol’’ and that “this is what showcases the beauty of Islam’’.

Dr Asri says Islam is all about better welfare for the people, spiritual development, strengthening family bonds, and ensuring peace and harmony in society.

And he points out that the Government has already taken action to do a number of these, such as building schools and universities and giving people an education, which is something sought by the religion.

He says there are many things which could have been brought before Parliament, such as how to inculcate the beauty and mercy of Islam into education and the economy.

“But in tens of years in parliament, they (PAS) never even brought these up and focused instead on labelling other Muslims infidels, and having two imams during prayers (because they refused to be led in prayers by an Umno imam).”

He points out that Muslim countries with renowned scholars such as Egypt, Kuwait and Qatar have never discussed implementing hudud, and countries like Pakistan, Sudan and Nigeria that tried to implement it have stopped, because in today’s world, people and conditions are different.

He also says that in Islam there should never be double standards in implementing a law.

“I fear that a person who steals a car will get his hand amputated but a nobleman who steals millions will not get his hand amputated.’’

He questions what such a thing would do to the fabric of society and the image of Islam.

Dr Asri says if a Muslim faces amputation for a theft and non-Muslims do not, that would not help create harmony and peace within society because there are two sets of laws for the same crime.

He fears if such laws are enacted and implemented in an unjust manner, it will cause Muslims to leave the faith.

“Muslims don’t need this right now.

“There are many other issues that we should be looking into, such as the issue of good governance, the environment and corruption. We should also be looking at issues that help women, such as expediting divorce cases, because there are a number of cases where women in the midst of getting a divorce are left hanging for years without their cases being resolved. I think all these matters should be sorted out first otherwise people will feel that Islam is unjust to women.

“For me, if the amendments to RUU355 are not going to result in good, let us postpone them and focus on our priorities.’’

Read in full from TheStar here.

IT has been quite a busy week for those interested in the issue of amendments to the Syariah Courts (Criminal Jurisdiction) Act 1965, commonly referred to as RUU355.

The week started with a “How Much Do you Know About Hudud” forum last Sunday with eminent speakers and people from both sides of the divide giving their views. On Thursday, retired Court of Appeal judge Datuk Mohamad Ariff Md Yusof gave his views in a lecture at the Law faculty in Universiti Malaya (UM). And yesterday, those in support of and those against RUU355 held their separate rallies on the issue.

At his talk at UM, Mohamad Ariff said he has no doubts the amendments to RUU355 that PAS president Datuk Seri Hadi Awang put before Parliament in November are constitutional – but he has reservations about them because he fears abuse.

“Yes, they can do it constitutionally. But should it be done the way it is being done? No! I believe the upper limits are simply too high,’’ he says.

Hadi is proposing the fine for syariah offences be hiked up to a maximum of RM100,000 from the current RM5,000; the jail sentence be increased to 30 years from the present three years; and the number of strokes in whipping be allowed to go up to 100 instead of the current six.

For Mohamad Ariff, the current limits are already very high. He says, for instance, religious authorities are able to fine someone teaching religion without certification RM5,000 in some states and RM3,000 in others, which is already very high.

“What else do you want? Imprisonment for 15 years? What do you require a jail sentence of 30 years for? Or whipping? You don’t whip someone for teaching without a tauliah (accreditation)!’’

“If you don’t approach this in the right way, it can lead to all kinds of abuses.’’

Mohamad Ariff cited the case of an MP (Shah Alam MP Khalid Samad) who went to a surau to deliver a talk about the plight of people suffering in Gaza at the invitation of the surau: the religious authorities in the state went after him and (the Klang Lower Syariah Court) fined him RM2,900 for “teaching without accreditation’’.

“He was there to give a talk by invitation! And now this poor MP is going to lose his Parliament seat. This is a lesson to highlight this entire problem. You can create offences in the Syariah Court and increase upper limits but if you don’t approach it properly and you don’t have the right people to apply it, it can lead to all kinds of abuses.’’

(Under Article 48 of the Federal Constitution, an elected representative will lose his seat if he is convicted of an offence and fined RM2,000 or more, or receives a jail sentence of a year or more).

Mohamad Ariff also pointed out that when the maximum fine is low like at present and capped at RM5,000, the discrepancies for the offences are not so great from state to state.

“But if you have a RM100,000 limit, you can imagine what can happen!”

For him, it is just not logical to argue that there is a need to increase the upper limits by such a huge quantum solely on grounds that the Syariah Courts have been neglected all this while and need to be upgraded to the level of the Civil Courts.

He points out that the Civil Courts have to deal with the Penal Code and all kinds of offences, while the Syariah Courts have only limited jurisdiction.

And he says that the Federal Constitution makes it clear that the Syariah Court cannot encroach into areas covered by civil law and the Penal Code.

He believes the framers of the Federal Constitution would be simply “aghast” at what is happening with regards to syariah law and the direction the country is taking.

So, he says, civil society and “politicians of saner minds” should really ask for the justifications for the amendments to RUU355 and ask why the fines and punishments have to be so high?

“Don’t simply vote in favour of it just because it is constitutional.

“I have a feeling they (those pushing for the amendments) can’t justify it.’’

Mohamed Ariff notes that there is already some overlapping of criminal offences in the Penal Code with syariah law, for example laws regarding sodomy.

When there is such an overlap, he says, the offence under syariah law is probably invalid because the offence should be tried under the Penal Code.

“We have all the expertise, all the prosecutors necessary, the judges and everything else that can do justice. Can you trust the same to be done in the Syariah Courts?’’

He praises the Syariah Court for being good in dealing with family law.

He says it can improve its efficiency in dispensing justice in the areas of marriage, family and the inheritance laws of Muslims, “which are the staple of syariah personal laws of Malaysia, rather than being too preoccupied with imposing the harshest punishments for syariah criminal offences’’.

At the forum earlier in the week discussing “How Much Do you Know About Hudud’’, constitutional law expert Datuk Dr Shad Saleem Faruqi said, according to the law, Syariah Courts have powers over offences that are against the “precepts” of Islam but “sadly’’ the Federal Constitution doesn’t define what these precepts of Islam are.

“So many states are abusing their power by treating anything they like or don’t like as a precept of Islam.

“If you question a fatwa (religious edict), no matter how respectfully, that is a criminal offence. If you give a discourse on Islam without a tauliah (credentials) that is against the precepts of Islam.

“I don’t know which Islam we are talking about. It is not the Islam I was born into and not the Islam I practise. This is an attempt by some to arrogate a monopoly of power to themselves.’’

He says some of the religious laws the states are passing are being done very unthinkingly, citing as an example the law that stipulates that speakers need credentials from that state to be able to speak on religion.

“So if a lecturer gives a talk to a class on Islamic law, I am not sure if it is legal any more because they would need to be bertauliah (accredited by the state).’’

He says the tauliah law states that people can only discuss religion with their family at home.

“So if I am in a car with my family on the way to Kota Baru, I cannot talk about religion because that is not my house. Or if I am at home and someone by chance visits me, then I cannot talk because it is not just my family any more.

“This kind of law is unthinking and needs to be reviewed. It makes us look like fools! I don’t know how the law even got through!’’

Dr Shad says that syariah law is not a blank cheque for states to do whatever they want with in regards to religion, stressing that the power of states to punish Islamic crimes is subject to Federal control and must be conferred on the states by Federal law.

Which means that despite the Kelantan State Assembly passing the Kelantan Syariah Criminal Code Enactment (1993) and the amended Kelantan Syariah Criminal Code II (2015), the state cannot carry out punishments such as stoning, crucifixion, execution, or amputation because these are outside its jurisdiction.

For him, the Syariah Courts are supposed to punish offences that are relatively minor in nature such as khalwat (close proximity), drinking alcohol, abuse of halal signs; also, syariah offences must not be matters already in the Federal list.

“But unfortunately, most states are trespassing on the Federal Constitution by punishing crimes like homosexuality, incest, participating in lotteries, betting, and gaming which come under Federal law.’’

Dr Shad points out that some civil judges do not seem to know the Federal Constitution and they abdicate their responsibility to interpret and enforce the law whenever there is even “a smallest whiff of Islam”, even though it is clearly stated that when it is a matter concerning a Muslim and a non-Muslim, it has to go before a Civil Court because a non-Muslim is not eligible to go to the Syariah Court.

“Barring a few honourable exceptions, our courts get cold feet whenever there is an issue of Islamic law. They bend over backwards to expand the horizon of the power of the syariah parties.’’

Dr Shad believes that Hadi’s private member Bill is “clearly a clever attempt to revive the Kelantan Criminal Code II which has been lying dormant because of constitutional hurdles’’.

Saying that the punishment must be proportionate to the offences committed, he points out the penalties in Hadi’s motion calling for 100 lashes, 30 years jail, and a maximum RM100,000 fine are for some crimes that are victimless.

“If someone drinks, if someone doesn’t say his prayer, or doesn’t fast, there is no real harm to national security and public order.

“Some of the punishments in the Penal Code are lesser (for more serious crimes). But for not saying your prayers you can get 30 lashes!’’

He says experts in Islam will tell you that there is a difference between sin and crimes, and that not every sin needs to be criminalised – “This law (RUU355) tends to do that (criminalise every sin).’’

He says as this is a matter of national importance, it would be quite in line for the Malay Rulers as the heads of religion in their states to discuss the law and give direction.

Saying that he is all for genuine dialogue, Dr Shad notes that while the Quran is divine, the interpretations are human.

“As a student of law I have to say there is no word that is not capable of multiple interpretations. Those of us who are Muslims have a duty to paint our religion in the best possible light. So if there is an interpretation that is available that is kinder, gentler and more merciful, what’s the harm in trying to promote it?’’

(Dr Shad writes the fortnightly Reflections On The Law column in The Star.)

Read in full from TheStar here.

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