Harakah: "Implementation of hudud does not require change in Constitution - Dr. Abdul Aziz Bari"

(Pixs for illustration purpose only)



The September 20-23, 2010 issue of Harakah carried an interview with Prof. Dr. Abdul Aziz Bari, Professor of Law at International Islamic University, regarding implementing hudud (Islamic Criminal Law) in Malaysia. The interview focused on Karpal Singh's (MP for Bukit Gelugor, Penang and Chairman of Democratic Action Party) claim that Malaysia is a secular country. Excerpts of the interview are translated below:



Harakah: Recently, Professor reacted strongly to Karpal's statement that our country is secular. What's the link between being secular and implementing hudud in Malaysia?



Prof. Dr. Abdul Aziz Bari: The secular issue was raised as an excuse to block the implemention of hudud. In other words, this secular stand can be used as a filter to reject or accept something. This departs from regarding the Constitition as the highest law from which all other laws develop. According to this secular view, laws based on religion cannot be implemented.



Harakah: Is this claim true?



Prof. Dr. Abdul Aziz Bari: This claim is not true as Karpal based his opinion on the case of Che Omar bin Che Soh. This case was decided by the High Court -- before it was transfered to the Federal Court-- and presided by Tun Salleh Abas in 1988.



However, the case does not state that Malaysia is secular... It merely states that the Constitution is the highest law and maintains the dichotomy of secular laws. Anyway, the problem with this case is that the judges did not scrutinise the Reid Report and White Paper.



Harakah: What examples show that our country's Constitution is not secular?

Prof. Dr. Abdul Aziz Bari: The clearest example is Article 3(1) of the Federal Constitution which states, amongst other things, that "Islam is the religion of the Federation", which places Islam as the "faith" or "religion" of the country.



Harakah: How about those who say that Article 3(1) needs to be interpreted with reference to the admission by our former Prime Minister Tunku Abdul Rahman that Article 3(1) does not affect the secularity of our country?



Prof. Dr. Abdul Aziz Bari: There're several ways to refute this argument. First, we're not sure whether Tunku understood the meaning of secular country. If we recall what Tunku did - like forming the Religious Department of the Prime Minister's Office now called JAKIM -- it's clear he said one thing, did another.



A secular country cannot make provisions to build mosques, employ imam and mufti, build religious school and other things. This is because this privilege is not given to other religions and this is not fair.



Second, Article 3(1) is clear enough and without any doubt. So why do we need to refer to the thoughts or statements of Tunku or the Reid Commmssion Report?



Harakah: Another argument .. is that the Constitution has an original structure that cannot be changed even with the approval of two-third majority in Parliament. Please explain, Professor.

Prof. Dr. Abdul Aziz Bari: From the research I've done, there's no need to change the Constitution to implement hudud...



Harakah: Looks like there is no obstacle to implementing hudud?

Prof. Dr. Abdul Aziz Bari: Yes, to me, it only requires Parliament or a State Assembly to approve an Act or Enactment for the provision of offences and punishment under hudud.



Harakah: Recently, Professor was quoted by the media as having said that hudud cannot be implemented through a classical approach?

Prof. Dr. Abdul Aziz Bari: I was talking to media who did not understand hudud; what I said was implementing hudud in a modern country like Malaysia has to be done in the context of Constitution and laws