Hudud laws have specific purposes namely they are divinely designed in order to protect five essential things of one's life that is religion, life, intelligence, heirs and progeny and property.

Let us take for example the crime of adultery. Yes, Islam prescribes a very harsh penalty against such a crime. But such a penalty must not be viewed in isolation from the entire scheme of familial relationship which Islam seeks to duly protect.

The penalty for adultery is in fact the last resort. Proving such a crime is almost humanely impossible except when there is an unqualified confession. Even a confession can always be withdrawn at the stage of execution.

In fact Islam promotes and simplifies marriage for only through legal marriage human progeny is duly preserved. Whilst marriage is greatly promoted, Islam at the same time closes all the avenues leading to adultery.

Adultery is prohibited because it brings with it all the evil consequences which are too well known to be stated here.

Education and hudud laws work hand in hand. The Prophet Muhammad had lucidly explained to us the rationale of prohibiting adultery. A man met the prophet and asked his permission to commit adultery. The prophet, being the teacher of mankind, did not reprimand the man.

On the other hand the prophet politely asked him the following questions. "Do you have a mother or a sister or a wife?" The man answered in the affirmative.

The prophet then asked him, "Do you agree if any man commits adultery with your mother or your wife or your sister ? The man said "No I don’t!"

The prophet explained to the man the rationale as to why adultery is not a good thing.

He said: "If you commit adultery with any woman she is either someone's mother, wife or sister thus if you cannot tolerate any adultery against any of your beloved women how can you tolerate adultery against someone's beloved women ?”

Criminal law is necessary

Criminal law is a part of human nature. It is unthinkable not to have laws dealing with crimes. So long as human beings are endowed with evil desires, crimes will definitely exist and thus we need laws to stamp them out.

As far as hudud laws are concerned, they are, relatively speaking, quite difficult to prove.

The standard of proof in hudud are extremely high that is beyond any shadow of doubt.

In other words whenever hudud crimes are committed, the prosecution has to prove all the ingredients of the charge in certainty. Any iota of doubt must be ruled in favour of the accused person. This is based on a trite maxim doubt invalidates hudud.

It is also based on a trite principle derived from the tradition that it is better for a judge to err to acquit 10 guilty persons than to convict a single innocent person.

Why is the standard of proof extremely high in hudud? The answer lies in the following rationale.

Islam believes that if Muslims, either the ruler or the ruled, lead their lives based on the true teaching of Islam, the non-existence of serious crimes is almost certain. Be that as it may, whenever the state says there is a crime taking place, the state is obligated to prove such crimes really exist in certainty.

From this it may be fairly said that hudud laws , despite being divine laws, are only capable of dispensing true and effective justice when they are implemented in a perfect Islamic environment where good governance and sound policy prevail.

On the contrary, in the absence of good governance, hudud laws, despite their aim of bringing genuine law and order, may be counter productive especially if such laws are implemented by a failed state.

Not right to reject hudud

While it is not wrong for the non-Muslims to be duly wary of hudud laws as such laws are still foreign to them it is also not right to reject such laws simply because they are Islamic laws.

After all our laws are neither Malay, Indian nor Chinese. On the other hand, our criminal laws are derived from foreign lands. When Kelantan seeks to implement hudud laws, such an initiative does not really go outside the peripheries of our federal constitution.

In fact, Islamic criminal laws are already there in all states in Malaysia and the Muslims are currently being subject to such laws which are triable in syariah courts. You may find, for instance , a crime of adultery or false accusation (qazaf) in such laws currently being enforced.

The only problem of such laws is that the punishment of crimes falling under hudud laws do not reflect the true punishment envisaged by the Quran or the Hadith.

Kelantan only seeks to bring such laws in accordance with the true teaching of Islam. In other words, PAS is merely trying to rectify the mistakes committed by Umno when the latter simply fails to ensure that hudud laws are put in their proper place.

Islamic law is under the jurisdiction of the state as clearly provided under the state list in the Ninth Schedule of the Federal Constitution. The Ninth Schedule states in explicit terms that it is the state's power to enact Islamic law.

By virtue of Article 74 (4) of the Federal Constitution the general words in Ninth Schedule such as the term of Islamic law cannot be delimited.

Unfortunately, the Federal Government has usurped and transgressed the legislative power of the state by enacting a federal law seeking to delimit the term of Islamic law by limiting the power of Syariah court to impose punishment on hudud laws.

In Mamat bin Daud v Public Prosecutor, we have a Federal Court ruling which held that Section 198A of the Penal Code was unconstitutional in that in pith and substance such a provision dealt with Syariah matters thus the federal government had transgressed its legislative power by enacting laws which were under the jurisdiction of a state.

It is submitted that the same happens here. It is not the hudud laws which are unconstitutional.

On the other hand, the federal law namely Section 2 of the Syariah Court (Jurisdiction of criminal matters ) Act 1965 which is unconstitutional for it seeks to restrict the Syariah Court's power dealing with syariah criminal matters even though such power is within the state legislative competency.

Dual systems exist in Malaysia and it is recognised by our constitution.

Hudud laws which are only applicable to Muslims do not go beyond such a dual system. They will operate within the system.

Mohamed Hanipa Maidin is the PAS MP for Sepang.