The hudud debate again: the PAS progressives’ viewpoint

In light of the recurring political debate consequent to the tabling of the amendment (2015) of the Shariah Criminal Code II of Kelantan (1993), permit me to pen this piece in the interest of all Malaysians.

This deliberation is admittedly the perspective of the so-called “progressive” group in PAS, and in fact a response to the various questions posed to this writer after the tabling and passing of the amendment bill last Thursday.

To recapitulate, PAS has been a bona fide Islamist political party from its inception. Our raison d’eter is Islam and we remain committed to realise our vision and objectives, working within the ambit of the democratic-legislative process and the Islamic provisions as provided for by the Federal Constitution.

PAS progressives strive for a better Malaysia, wherein good governance prevails and thrives through the observation of Islamic and universal principles of integrity, accountability and morality and seek to achieve “a socially just and equitable development” for  all Malaysians.

We aspire for a vibrant democracy that would allow for the functioning of critical institutions of check and balance in the nation, as espoused and enjoined by principles in Islamic public administration or "As-Siyasah as-Syar'iyah".

To answer specifically on our position on hudud, I once again say, without fear or favour, that hudud has its own unique place in the larger corpus of Islamic legal prescription or jurisprudence, ie. in Islamic law.

We nonetheless do not think that it is the most important imperative of the shariah, given the many other competing priorities. Never should a Muslim be accused, however, of rejecting shariah if he/she believes in its transcendental (revealed) origin, but prioritises other more important shariah imperatives as taking precedent over its penal code.

This is expounded in the Fiqh Al-Awlawiyyat, (science of prioritisation), defined technically as “putting the more important imperatives above other important imperatives” (Taqdim al-ahammu minal muhim). The great jurists placed this science as an important consideration, inter alia, in arriving at a dispute resolution where competing priorities oftentimes demand that leaders make a judgment call.

That position is surely worlds apart from and nowhere similar to believing that the Islamic penal code is either obsolete or antiquated, not befitting modern civilisation. For those very fond of being judgemental, please care to note the glaring difference in our emphasis.

Emphasising different priorities is quite opposed to criticism of the provisions that we as Muslims believe should be respected. While the earlier position is possibly a commendable position to adopt, the latter, which rejects hudud on the grounds of its punishment, is very problematic as Muslims, bordering on disbelief, as expounded by distinguished jurists in Islam.

The Islamic law is however not just about hudud or about the Islamic penal code. Unfortunately, many engage unfairly in negative stereotyping and hence wrongly perceive Islamic law as essentially punitive. We believe that Islam is a religion of compassion and mercy unto all (Rahmatan liL ‘Alamiin).

It is our conviction that the supreme and overriding purpose of Islamic law is indeed to provide justice (Al-'Adalah) and ensure prosperity for all. Economically, to cite an example, the shariah advocates the equitable distribution of both income and wealth to the entire citizenry as axiomatic and cardinal, very opposed to many unIslamic practices of corruption, crony capitalism, embezzlement, abuse of power and rampant wastage seen in the gross mismanagement of resources in this beloved nation.

Equitable distribution and parity are achieved through a sustainable growth and fairness in opportunity while being benevolent to the less fortunate section of society, regardless of race and religion. So besides and beyond hudud, there's a lot more that the Islamic law has to offer the country, nay indeed humanity at large.

As Islamists and as “democrats”, very unlike the “jihadists” of Isis or al-Qaeda and Boko Haram or the theocrats, we cannot and shall not impose our policies on others, not even on Muslims, much less on non-Muslims, just because it is God's law, without giving due regard to the legal and social context of Malaysia and various condition precedents as judiciously expounded by jurists, the like of sheikh Yusuf Al-Qardhawi.

Being a democratic party, we must also face popular rebuke and be even criticised for shortcomings and our ineffectiveness or failures to deliver on whatever promises. Our “Tasaamuh” or tolerance for differences and dissent is our hallmark of embracing pluralistic politics. All our policies must be advocated and mandated by the rakyat, through the bi-cameral parliamentary set-up or the state legislative assemblies. The rakyat must be made to understand through dialogue, education and sound reasoning in the public sphere, why a particular policy is better and superior, in terms of both its evidence-based efficacy and its benefits to all.

While we fully understand the anxiety and concern that these legislative efforts have caused, we similarly plead with friends, particularly well-wishers of Pakatan Rakyat, not to allow ourselves to be continually divided and ruled by the zero-sum politics of fear and division of our political nemesis. Admittedly hudud, I repeat, has always been a perennial problem and an Achilles heel of Pakatan Rakyat, hence the paramount need for tact and mutual respect.

In the spirit of dialogue, the progressives in PAS have been in direct consultation with our PR partners to brief on the holistic picture of the Islamic law (shariah) and the importance of contextualising the recent tabling of amendment to the 1993 Shariah Criminal Code II.

We earnestly call for understanding and respect for differences within Pakatan and among Pakatan supporters. This bill predated Pakatan, and was part of the 23 years of Tok Guru Nik Aziz’s administration. His pledge to the people of Kelantan who elected PAS to five terms in government was to bring some semblance of an Islamic penal code to Kelantan. This bill does that.

Denying the bill that has long historical roots in this state would be tantamount to stifling the ongoing legitimate legislative process. Not only would it be extremely regrettable and arguably undemocratic, it goes against the principle of accepting difference within Pakatan. We believe that respect of different views is an essential element of working in a democratic coalition.

Moving forward, I want to critically comment on the manner in which the private member’s bill on hudud is currently handled to date and the far-reaching repercussions to the struggle of PAS and the interests of Pakatan and the rakyat as a whole.

Meanwhile, we will continue to believe that Pakatan Rakyat has its cherished common goals to bring about broader Islamic principles of good governance, justice and fairness to all Malaysians.

I sincerely implore for your kind understanding and patience. – March 23, 2015.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.