The problem with hudud is PAS

One wonders why hudud is being so hotly discussed in the public sphere. Many are against it, and they make all kinds of arguments to prove their points for why they think so.

Many are also for it, saying that it is God's law, so much so that they would even threaten to kill and rape people to defend hudud (I wonder what God thinks about that!).

And then we have the president of it all, Datuk Seri Abdul Hadi Awang, who has told everyone to just wait first and listen to what he will table on hudud in Parliament before criticising.

That is the problem in the first place. Nobody seems to have any idea of how hudud is going to be implemented in Kelantan because nobody has bothered to explain it properly.

When there aren't any clear details or information, what do you expect people to do? They get anxious and start to speculate. That is only natural.

And with all the secrecy with regards to the details of hudud, people start wondering why something that will affect the public won't be put up for public scrutiny.

So even the people who want to support it can't do it wholeheartedly and their only argument is that it is God's law (when in fact it is really PAS's interpretation of it).

Hudud has been around in Kelantan (and even in Terengganu when PAS managed to take over the state briefly) since 1993, but its implementation has never been able to be done.

There are several problems with implementing it, mainly that it is unconstitutional because it involves criminal law and the penal code, over which the state does not have jurisdiction.

If a person steals, the hudud punishment is to cut off his or her hand. Stealing is a crime, hence it falls under the penal code which is under federal jurisdiction.

If someone is robbed or murdered, the punishment can even be death. And again, these are crimes which fall under federal jurisdiction, not the state's.

Then how about Shariah law which falls under all the states' jurisdiction, you ask? Well, it has its limits. Most offences under Shariah law are not crimes but technically moral offences.

Examples of these are adultery, drinking alcohol, being in close proximity with someone from the opposite sex who isn't your spouse, etc. These are not crimes that fall under the penal code.

And even the punishments that are meted out under state Shariah law are very limited, such as whipping that doesn't exceed five times, a fine under RM2,000, etc.

So the only jurisdiction the states have is small and limited. All other serious offences that are actual crimes still fall under federal jurisdiction.

And as we know, for anything that falls under federal jurisdiction, any change means amending the Federal Constitution. This requires the important two thirds' majority in Parliament.

Then there is the issue of Article 8 of the Federal Constitution, which relates to equality in the eyes of the law. All individuals are entitled to its equal protection.

Under Article 8, no one can be discriminated against because of his or her religion, race, descent, gender or place of birth in the administration of any law.

So for an individual to be forced to go through a second penal system (hudud) just because he or she is Muslim would be in violation of the constitution.

So here's the deal: implementing hudud is hugely problematic from a legal and societal point of view. Let's not even start with its religious problems (this one is for another series of articles!).

If it weren't a problem, it would have already been implemented by Parliament way back in 1993 when PAS first took power in Kelantan.

And now, in 2015, PAS seems to be very aggressively pushing the hudud issue to the forefront again, making one wonder what their real intentions could be.

First off, PAS's party elections is due this year. And if we look at the trend of political parties in the country, this is the season when they will go full out on emotional appeals to the grassroots.

But hey, they say that hudud is divine Islamic law determined by God. Who am I to doubt their pure intentions, right? But I do doubt how divine their interpretation of Islamic law is. – March 27, 2015.

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