Saturday, 24 September 2011

WHY Hudud Law is EVERYBODY's Business Especially in Malaysia

Why hudud law is everybody’s business

(This article was first published in “Off The Edge” on January 15, 2009)


Clive Kessler
Emeritus Professor
University of New South Wales

Once again the familiar argument has surfaced, or been desperately invoked, this time in the latest stand-off between the leading Pakatan Rakyat allies Karpal Singh and Anwar Ibrahim.

Hudud law, if implemented, will apply only to Muslims, Anwar Ibrahim again insists, so the question is one that concerns only Muslims, not Malaysian citizens of other faiths — or no conventional doctrinal allegiance at all. So non-Muslims have nothing to fear, no legitimate interest in the matter, and no right to express any opinion. The matter is for Muslims alone.

This is not the first time that we have heard this argument. It is standard debating “stock-in-trade”, not only from Anwar Ibrahim and the syariah-promoting elements in Parti Keadilan Rakyat but equally from the designated spokesmen of PAS and Umno as well as from the various associations of ulama and officially constituted religious authorities, state and federal.

Not just familiar, it is also, at best, inadequate and, more often than not, misleading. It is wrong for two basic reasons — reasons far more basic than any specific legal technicalities such as the issues raised over the interpretation of the 1988 court decision cited by Karpal Singh, or any similar individual legal judgment.

The first reason is this. Whether they are actually implemented and enforced or simply stand as symbolic signposts and “ambit claims” on the statute books, the formal authoritative assertion of the hudud laws — including such punishments as amputation and stoning and even death for apostasy — fundamentally changes the relation of the individual to the state and its legal order.

It substantially alters the balance between the state and the individual in the state’s favour. It thereby transforms the entire character of the state, arguably coarsening its laws and their impact upon public culture and social life.

When the state or any of its instrumentalities is suddenly empowered to hold, and potentially exercise, that awesome force — which it previously could not exert — over any of its citizens, or any section of them, the nature of citizenship itself is diminished and its meaning is reduced, not just for those directly “targeted” but for ALL citizens.

A state that declares itself ready to use such fearful measures, or even prepares to arm itself with them, is a state that announces its own capacity, both institutional and moral or psychological, for savage enforcement and retribution.

It is not a state that any ethically enlightened, socially emancipated or truly thoughtful citizen who had lived in a state without such fear-inspiring powers would freely choose to call home. A free citizen would refuse to exchange what they had previously enjoyed for this debased and degraded citizenship under this kind of regressive and repressive regime.

Once the syariah law and its hudud punishments are authoritatively instituted, this degrading of the character of free citizenship is a general effect.

It is one whose immediate human implications must soon affect all citizens, regardless of religion and social background, even if it is technically mandated only upon one section of the citizenry — in the Malaysian case the numerically preponderant and politically dominant section of the population.

This basic underlying change in the nature of the state, and in the character and extent of its power over its citizens, will inevitably transform the tenor of social life in general. So it will affect all the state’s citizens, not only those who are Muslims. Because it must affect the entire citizenry, all the state’s citizens without exception are entitled to have, and express, a view on the subject of hudud law implementation.

Every citizen of a modern state is entitled to voice a view whether or not that state should have the right to inflict dire physical punishment on any of its citizens, or even to enact hypothetically on a provisional basis laws of that kind whose effects are, to put the matter without euphemism, brutalising — either in fact, by their positive enforcement, or prospectively, by virtue of their intimidating inscription within formally codified law.

Even if still unenforced, their presence on the statute books cannot but have a clear, immediate and chilling effect upon all citizens by reshaping, in fact diminishing, the very meaning of citizenship itself. Even if it is only hypothetical or symbolic in intent, an assertion of the state’s right to mutilate and maim any citizen, even the least worthy and most criminally debased of them, can only demean everyone.

It demeans, too, the citizenship that they share and the law under which they live and through which their citizenship is created and sustained.

The introduction, even the mere hinted suggestion, of any proposal for the official infliction of pain on people’s bodies and souls — for outright crimes against their fellow human beings, or even for the exercise of independent intellectual and spiritual conscience — must markedly shift society away from the gentle end, and decidedly towards the crude and brutalizing end, of the ethical scale. That seems indisputable.

Any such legally mandated assault upon the citizen — any citizen or subject of the state — with its mutilation of bodies, maiming of souls, shaming and extreme humiliation of persons and its violation of personal conscience and human dignity will discredit the state, its laws, and those who uphold them. This is not a direction that a modern progressive state can take or its citizens, if they are thoughtful, condone. Those who endorse such measures must have a different agenda.

Every citizen of a modern state has the right to say that the national political community of which they are a member should not be in the business of chopping off hands and feet or even talking about, or hypothetically considering, the introduction of such measures — nor in the business of criminalising beliefs, including those of personal and spiritual principle, that are held in good conscience.

Regardless of their religion or faith affiliation, a citizen is entitled to say to the ruling authority:
“You cannot maim and painfully shame my fellow citizens — some of my fellow citizens, any of them — well, not in my name you don’t!

Because if you do, you not only enlist me as one of the perpetrators of this dire, extreme and callous act, you also make me one of its objects and victims.

As both implicated joint author and as implied target of this or any such action, I say no!”
Any contention that a citizen or any group of them should remain silent, and may be told to do so, because they have no legitimate say in such matters is unsustainable. It is a claim that fundamentally misunderstands the nature and meaning of modern citizenship as morally autonomous membership in the national political community.

Any citizen of a modern state, regardless of religion, is entitled to hold, voice and promote the view that the national political community of which they have long been a member — and long regarded in Malaysia, ever since its inception, as humane in its aspirations and progressive in its direction of development — should not suddenly assume, or (perhaps rhetorically to embarrass its political adversaries), even flirt with the previously unimagined power and right to cut off hands and feet or to criminalize individual beliefs held in good conscience.

Any such citizen would be entitled to take the view that such a dire innovation, when introduced or even officially considered — or merely intimated via some tactical political gesture — must unilaterally abrogate the fundamental contract that holds between a modern state and its citizens as its political stakeholders and moral shareholders.

Such a citizen has the right to the view that the state of which they are a member should not have, or suddenly grasp towards, any such recourse since — should it choose, especially as in Malaysia, to do so against its own history — the state and all its members stand to be demeaned by that action.

What the state does, it does in the name of its citizens — all its citizens — in general. All are implicated in its actions, and everybody is entitled, indeed obligated, to concern themselves with the moral meaning of actions for which they are in any measure responsible.

Every citizen is accordingly entitled to argue openly whether the state in which they hold citizenship should be permitted to impose such punishments on any of its citizens — and, as a citizen, to hold in good conscience that all stand to be demeaned if any one of them is so treated.

Every citizen has a right to hold and express a view whether he/she wishes his or her state to be such a state, a state that claims the right of recourse to such dire and extreme methods in the treatment of any of its citizens. Dire and extreme — let there be no mistake — these measures undeniably are since they involve the intimidatory “criminalisation” of behaviour and also thinking, on issues of legitimate personal moral and spiritual conscience.

They humiliate and punish in demeaning and savage ways that entail both terrible physical cruelty and extreme psychological degradation, the fearful violation and stigmatizing, at once and alike, of both bodies and souls.

Such legal provisions, even if they stand only “in reserve”, are statements about the kind of regime that the state is prepared, or earnestly aspires, to be and the kinds of measures to which it is prepared to have recourse.

Every citizen is, by definition, a stakeholder in the state, and all of them — not just one specially designated segment of the citizenry — are entitled to hold, voice and also promote politically a view whether the state of which they are all “part-owners-in-trust” should evolve towards or away from such a coarsening brutalisation of tone and character.

Some may question my use of such epithets as “coarsening” and “brutalising”. That is MY view.

Others may see the matter differently. That is their right. They may hold and argue the case for a different view of the matter.

As with those who would climb Everest not only without oxygen but barefoot, I wish them the best of luck.

Meanwhile for me, and many other people of sound and decent judgment, whether they be formally implemented or only indirectly intimated, punishments such as judicially-mandated amputations and stoning are nothing other than “coarse”, “crude” and “brutalising” in their effects, both individual and upon society and public culture broadly.

Those who see things differently may, if they hold such views simply as a matter of private conscience, remain silent. But if they wish to promote the case for syariah law and the hudud punishments as a matter of public policy, they must argue the case publicly.

They must argue, and persuade the generality of their fellow citizens, either that such measures are not coarse, crude and brutalizing or else that such a coarsening brutalization of social life, with all its humanly unworthy and demeaning consequences, is somehow socially beneficial and ethically uplifting. They may hold and try publicly to uphold such views. As I say, I wish them luck.

Meanwhile, there is only one principled stance available to a government — especially a government whose entire raison d’être is grounded in a commitment to the successful practising of intercultural and interreligious partnership — that is faced with the challenge from its clamouring opponents for the implementation of syariah law and its hudud provisions.

It will not do to retreat into temporizing prevarications such as the claim that the times are not yet right, the circumstances not yet appropriate, for their implementation. Rather, it must clearly say that their enactment is simply not an option — not now, not ever.

The leaders of such a government will be criticized and opposed. They will have to learn to answer their critics forthrightly. Those who argue — on supposedly democratic grounds, as some in PAS now do — that if a clear political majority want to live under hudud law then they are entitled to enact it nationally, regardless of other considerations, must be told that they misunderstand democracy.

They must be reminded that democracy is not the replacement of the premodern tyranny of the minority with a modern, electorally ratified tyranny of the majority. It is about political conciliation. It rests upon the thoughtful and deliberative negotiation, not the insistent and heedless overriding, of differences.

The times are over in Malaysia when people might say to their fellow citizens,
“We want this, we have the numbers, so you remain silent!”
Their end was signalled in March last year.

Democracy is a government not of reckless majoritarian maximalism but of limits. That, in fact, is the real and original meaning of the idea and Arabic word had (as in its derivative Malay forms such as terhad and berhad) and in its plural form hudud. They embody the notion of restraint and limitation.

The hudud punishments, in the fierce time of their origins, were stipulations of maximum limits that were not to be exceeded, not declarations of a mandatory retributive minimum that was always to be recklessly demanded, regardless of social and historical circumstances, and implacably enforced.

Those who call for the enactment of syariah law and the hudud punishments owe it to their fellow citizens, Muslim and non-Muslim alike, to acknowledge this historical fact — and its current political implications, especially for modern societies of the social, cultural and religious complexity of contemporary Malaysia. They need, in framing their own political programmes and agenda, to recognize and uphold that core notion of principled restraint — rather than to seek, always and ever further, to “push the limits”.

To their opponents and critics who — despite these persuasive clarifications of the real meaning of hudud and the nature of democratic public culture and governance — may still insist, either sincerely or for tactical political advantage, on promoting the implementation of the hudud sanctions and punishments, the leaders of such a government must learn to say:
“You want to cut off hands and feet — are you mad or bad? Or you want just to talk about, and toy mischievously with, the idea of doing so — are you crazy or evil?

This is the modern state of Malaysia with its formal legal codes, institutions and procedures, not the long ungovernable ‘badlands’ of Afghanistan. It is Malaysian politics that we are talking about, and Malaysian public life to which you presumably are seeking to contribute.

You want to uphold, promote and restore Islam? Fine. Let’s talk about it, about how to do it together.

But remember, Islam is much more than just the syariah, and the syariah is much more than simply hudud.

So why do you focus on the hudud, why is your emphasis so exclusively upon them?

Why do you make this single, archaic and poorly understood aspect of the syariah and Islam your key, even sole, political litmus test of Islamic authenticity? Are your reasons those of principle or of political advantage and strategy?

Are you really sincere in wanting to uplift, promote and restore Islamic faith and civilization in our time? If so, prove it! Prove it by demonstrating your readiness to sit down with us to devise and decide upon a direction and plan of action that we can all accept — Umno, PAS, PKR and Malaysia generally.

Join with us to create a modern Islamic form of society and sociability, of social action and social responsibility, that we can all embrace and be proud of — that all Malaysians may recognise as reaching towards what is unifying and universal, not divisive and politically partisan.

If you are not prepared to do that, we will all know, because you will have made clear, why your political focus is so narrowly and obsessively upon the issue of hudud. You will have proved yourselves people, and a party, of cynical stratagem, not of genuine principle.”
The second reason for the inadequacy of the bland assurances that non-Muslims need not fear the instituting syariah law and its hudud punishments, and therefore need not concern themselves with the implications of any such proposal, follows directly from the first.

In Malaysia the drive to institute the syariah law and its hudud punishments, ostensibly (in its proponents’ own terms) only upon the state’s Muslim citizens and residents, is inescapably fraught — all questions of principle aside — in direct practical terms.
  • It would involve the attempt to overlay and impose, upon a diverse and creative social pluralism of interacting and interpenetrating cultures, a mutually exclusive legal dichotomy, a juridical bifurcation, between the state’s Muslim and non-Muslim citizens.

  • It is, in its own terms, an exercise in creating two radically different and mutually exclusive zones of socio-legal space, Muslim and non-Muslim. It is questionable whether such a fundamentally bifurcated social order and legal dualism is sustainable. Perhaps, as the idea’s proponents apparently contend, it is, though I greatly doubt it.
But the question whether it is viable or not is again one that directly, immediately and legitimately concerns all the state’s citizens, not just those who as Muslims would be subsumed within the “Islamic legal zone” and made fully subject to the operation of the syariah law and hudud punishments.

In the modern world all questions about the nature and structure of the state, about the character and tone of its legal system, and about the operation of its legal institutions are the legitimate business, equally, of all the state’s citizens, without individual exceptions or broad categorical restrictions.

Every citizen is entitled to hold, voice and promote their own view whether the incremental, even surreptitious, creation of a bifurcated, and perhaps ultimately broken-backed, state is a good thing, in the general public and national interest.

Some years ago the noted Tunisian historian Hichem Djaït observed that the endeavour to institute the syariah law in modern, complex, socially pluralistic and culturally diverse states (such as Malaysia, for example) risked simply recreating the inherent duality of classical Islamic society and, specifically, its foundational legal dualism.

Such societies, he held, are comprised of two distinct socio-legal zones or components, each the reverse image of the other:
  • a Muslim zone or space in which people held full rights but a diminished freedom; and

  • a non-Muslim zone in which the state’s other citizens or subjects, while enjoying a far greater measure of freedom to do as they pleased regardless of syariah-based restrictions and limitations, also “enjoyed” (if that is the right word!) or were allowed to exercise diminished rights.
Is this the kind of society that Malaysia wishes to become? Perhaps. Perhaps not.

Either way, it is a matter that Malaysians — all Malaysians, without exception — are entitled and, so it seems to me, urgently need to discuss publicly and debate freely. It simply will not do to suppress public consideration of this vitally important national question.

Yet that is what seems to be happening in Malaysia these days.

Constructive and necessary public consideration is, as ever, being thwarted by artful recourse to the disabling dichotomy of which Hichem Djaït speaks:
By saying to one half of the population that they have no need or right to discuss the question since they are not Muslims and so are supposedly unaffected by whatever others may decide; and

By saying to the other half that as Muslims they have the right to be concerned with the question but not the standing to engage in any public discussion of it, that being the exclusive prerogative and province of those who alone know best, the ulama.
Whether this is a scenario for the progressive instituting and implementation of Islamic legal principles and values to the life of a modern democratic nation seems doubtful. It looks more like a strategic plan for instituting a creeping, historically regressive and anti-democratic clericalism.

That is my opinion.

But the choice is not for me to make but for Malaysians: all Malaysians as citizens, or only some of them as the historic and unchallengeable custodians, as they understand their role, of the syariah and its prerogatives.

Either way, the outcome and how it is reached, and by whom, will prove fateful for Malaysia for a long time to come.

That’s why the question of syariah law and hudud implementation is everybody’s business in this country.

-Clive Kessler

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