The move by Terengganu Menteri Besar Abdul Hadi Awang to implement hudud laws in Gov't slams Islamic law plan by PAS in T'ganu (June 7) will contravene the Federal Constitution in four major respects:

  • Under the Constitution, Muslims are subject to Syariah only in the limited areas of personal and family laws. These relate to succession (testate and intestate) marriage, divorce, maintenance, adoption, legitimacy, guardianship, etc.

    Not only is Syariah confined to personal and family matters and not extendable to criminal law under the constitution, but the authority to legislate on criminal law (hudud) is itself that of the federal government's under the Constitution's Federal List and not state government's under the State List.

  • As even Syariah personal and family laws are not permitted under the constitution to cover persons not professing the religion of Islam, much more with greater reason, hudud (Islamic criminal law) cannot be imposed on non-Muslims; it is in violation of their rights.

    The suggestion by Zahari Mohamad, senior aide to the Terengganu menteri besar that the religious law would apply to Malaysians of all ethnic groups in the state is clearly inconsistent with the Constitution.

  • The rape provisions requiring four Muslim male witnesses of fair credentials are clearly oppressive of women and contrary to the gender equal protection provision in the Constitution.

  • Hudud based on the pre-modern Syariah is squarely contradictory to secular Constitution based on English law. It will be recollected that all our institutions empowered by the Constitution such as the three branches of Parliament, Executive and Judiciary are English, and not Islamic, in derivation.

    • In spite of the blatant contravention of the Constitution, Hadi resolves to bulldoze hudud through the Terengganu state legislature. Is he aware of the following consequences?

  • Any law including hudud enacted in contravention of the Constitution is invalid, null and void.

  • Any attempt to enact such hudud will be interpreted as a deliberate and unlawful attempt on PAS' part to hijack and undermine a Constitution that it has been unable so far to have the requisite two-third majority in Parliament to democratically amend.

  • If PAS forcibly changes criminal law in Terengganu without regard to the Constitution and legality, it forfeits its claim to be considered a responsible and democratic party and embarrasses all its friends within Barisan Alternatif that claim so.

    • So in view of the above risks, why does Hadi still persist to table the hudud?

    PAS may calculate that if the Umno-led government does not oppose Hadi's move, PAS would have made a major score in championing Islam. If, however, the government otherwise rejects hudud as contrary to the Constitution, PAS can then accuse Umno of not being Islamic. So PAS is counting on the dilemma of "head, PAS wins, tail, Umno loses" that it seeks to impose on Umno.

    In this connection, PAS may have grossly miscalculated. The likelihood is that the Umno-led government will resist PAS' move and seek to avoid the dilemma posed by a two-pronged approach.

    Approach One is to say that compliance with the law and the Constitution is not inconsistent with Islamic credentials. This is shown by Deputy Prime Minister Abdullah Ahmad Badawi's response to Hadi's belief that his responsibility towards God took precedence over fulfilling the attorney-general's requests to vet the hudud draft.

    "Yes, for us God is foremost, but there are laws in this world...if there were no laws, the people would be more chaotic," Abdullah said in the above-mentioned report. This implicitly suggests the similarity between a person who deliberately flouts the law in the name of God and the fanatical militant.

    Approach Two is to challenge PAS' definition of what is Islamic. Even within Muslim societies, there is no consensus as regards what is truly Islamic. There being much room for debate, Umno will counter PAS' definitions by appealing to the fundamental principles of Islam that are universally acceptable.

    For example, when PAS seeks to reinstate hudud as law of the original Islamic state, Umno highlights its stoning and amputation of arms as barbaric relics of pre-modern PAS, inconsistent with the fundamental Islamic tenet of com-PAS-sion

    When PAS requires four fair-minded Muslim males to witness a rape, Umno points at its victimisation of women as incompatible with the other Islamic tenet of fairness to all including women.

    When PAS calls for jihad in the holy war sense, Umno construes it as struggle for personal improvement. To cover everything else uncovered, Mahathir further declares the country as being already an Islamic state and then sets out to globetrot as an emissary of Islam to explain it to the West.

    PAS has to be careful. If PAS presses the ruling elite too much to the corner, PAS exposes itself to being proscribed and banned by the government for being subversive (like the communists) of the Constitution. PAS' moves in Terengganu will provide the constitutional justifications of such a ban to the public.