Lets look at the idea of allowing individual states to have their own way to choose which stream of criminal law (Sharia & secular common law) they want. For this, lets make the hypothetical assumptions that (a) Kedah’s criminal laws for Muslims are Sharia, and Selangor, secular common law and (b) as far as rape offence is concerned, under Shariah, it is harder to prove the offence because of the requirement of the presence of 4 credible male witnesses of the offence.

Taking first the case where accused/offender and victims are both Muslims, and next where the accused/offender is a Muslim and the victim a non muslim.

Illustration 1: Muslim accused/offender from Selangor commits the rape on another Muslim victim in Kedah to take advantage of the ‘harder to prove’ Shariah law in Kedah.

Does the accused/offender get prosecuted by the more “relaxed” Sharia laws in Kedah based on where the offence is committed or the more stringent secular rape laws of Selangor from where the victim resides?

One may try resolve this Sharia conundrum by saying the law of where the victim resides should prevail.

Illustration 2: If that were so, sh should a (Muslim) rapist from Selangor be allowed to deliberately choose to commit the offence in Kedah on a Muslim victim residing in Kedah to take advantage of the more ‘relaxed’Sharia rape laws in Kedah?

Illustration No.3 : Wouldn’t the problems outlined in illustrations 1 and 2 above be compunded if the victim, whether residing in Selangor and visiting Kedah or residing within Kedah, were a non Muslim? Which law does one apply when the non muslim victim demands application of secular common law on rape, and the accused demand Sharia to which he says he is entitled?

Illustration 4 : Supposing the wrong doing is adultery which is a Sharia offence (Zina) punishable by death (decapitation). We have two offenders here, the Muslim alulterer from Kedah (sharia punishment is death) and the Muslim adulteress in Selangor (sharia punishment is a fine) or a Non Muslim for whom adultery is not a criminal offence. Supposing the adultery were committed in bo th Kedah and Selangor in different times. Do we put one adulterer to death by public decapitation and let the other scot free?

Illustration 5: even in deciding which law (Sharia or secular common law) to apply and which court – Sharia court or secular Court- to try each case – which should be the higher court to decide? A higher secular civil court or a higher Sharia Court?

The Constitution may permit states to promulgate Sharia laws but it is subject to these laws not being inconsistent with (a) Federal Law (eg Penal Code on crimes) or (b) constitutional protection of equality before the law or equal protection of the law encapsulated in articles 8(1) and (2) of the Federal Constitution.

The difficult part is which apex court (Sharia or secular) will decide on issues relating to (a) or (b) when a conflict in applications of between Sharia and secular law has arisen. Article 121(1)A (amendment introduced during mahathir’s administration) merely provides that jurisdiction of Sharia matters lies with Sharia courts, and civil, common law matters with secular courts but does not clarify whether if and when the two streams collide, which higher court, whether it be a Sharia or secular higher court, will determine the question whether the issue in contention ought to be referred to a Sharia court or a secular court below for adjudication.

By right it should be the secular Federal Court. So far it has skirted around this conundrum and not decided on it.

MOGADISHU, Somalia – A 13-year-old girl who said she had been raped was stoned to death in Somalia after being accused of adultery by Islamic militants, a human rights group said.Dozens of men stoned Aisha Ibrahim Duhulow to death Oct. 27, 2008 in a stadium packed with 1,000 spectators in the southern port city of Kismayo, Amnesty International and Somali media reported, citing witnesses.

She could not prove rape in the absence of 4 reliable male witness; at even 13 she could be married, and hence, having sex with a man other than her husband invoked inference of adultery puniushable by death by stoning.

“So, given the (seems to me) large amount of death and whipping already in the Penal Code, how is Hudud inconsistent with it?”

Penal Code is based on Common law precepts by which one of the cornerstone of crime is an infliction of harm on a third party without a lawful cause.

The element harm (on others) – that we see when an offender kills, maims, steals from, peddles drugs to others deserving whiping and death.

Hudud is structured around morality, with considerable focus on sexual morality. Even consensual, illicit sex in adultery, it is punishable by death though element of harm is absent unless one stretches it to include spouse’s emotions. What about youngsters petting in close proxibity? It is an offence though it inflicts no harm on any one. This is one difference, common law benchmarking a crime against harm to others whereas Hudud, harm against abstract concept of moralty, there being no or little difference between public and private morality.

Another difference is the patriarchal approach favouring males: veiling, men taking up to 4 wives, requirement of 4 witnesess whomust have seen the act to establish rape, in contrast to common law aspects relating to these issues.

The punishments in Hudud vary according to the status of the offender – Muslims generally receive harsher punishments than non-Muslims, free people receive harsher punishments than slaves, and in the case of zina’ (adultery), married people receive harsher punishments than unmarried.

Common law punishments vary according to whether offender is first offender or hardcore (concept of rehabilitation) – Hudud version is “only one hand should be cut off for the first theft” – or public interest where deterrence is required and other mitigating factors unrelated to religion (whether Muslim or non Muslim) or social status (free people vs slaves).

“Laws are just morals encoded, aren’t they?” – OrangRojak

Very much so in present Islamic Jurisprudence (Hudud) (or ecclesiastical laws of Medieval past) but not so, in the case of contemporary “secular law” derived from Common Law upon which Penal Code is based – that is, as I said, one of the main differentiating marks or inconsistent feature, if you will, distinguishing the Sharia Hudud from secular Penal Code.

Whilst some aspects of law overlap, as they invariably will, with morals, by and large and predominantly, the role of morals in secular constitution/societies is to provide aspiration for the community, marking what ought to represent the best practices, examples, ‘maximum’ conduct of its members, whereas secular law – especially criminal law – is (again generally not absolutely) predicated upon “harm to others”, which represents the ‘minimum’ conduct by which a member of community is expected to abide as an obligation and condition for living harmoniously with others.

One can say inflicting “harm to others” is “immoral”, and whilst that is true, the fact is conduct not inflicting harm but otherwise is amoral, morally neutral or even immoral, that does not inflict harm, is often, by secular law, not unlawful.

In contrast in the case of Sharia, in terms of “proportion” criminal law (hudud) and morality (viewed through Islamic prism) are very much fused, and laws encode morals.

One can understand this: In Islamic jurisprudence Hudud is part of laws the source of which is derived from the Almighty, whose concern includes morality of men’s behaviour.

In contrast, secular laws are made by men through their representatives in Pariament in resonance with Abraham Lincoln’s “government of the people, for the people and by the people” instead of of, for or by the Almighty!

And since men are characterised by their contrariety of political persuasions – as their moral persuasions – secular societies and constitutions would prefer predicating their criminal laws upon morally neutral benchmark of “harm” which is empirically verifiable rather than the relativism and subjectivity of “morals”.

On the other point – “If a group of people are determined to see their morals encoded as law and submit to them ….they should be permitted to, so long as nobody who does not give their full consent is subjected to those laws.”

It is not so here. Where or when does consent come in?

By constitution, the majority group are already defined to be Muslims by birth and leaving the faith is not permitted (re Lina Joy ‘s case) as apostasy is a crime which is punishable by death in regimes where Hudud is strictly enforced.

Even in the case of converts – once converted, it is irreversible because of the tenet against apostasy.