The simplest way to delegitimise a non-Muslim’s objection against Syariah laws is to assert that “Syariah laws apply to Muslims only” so that the objection becomes a “non-Muslim intervention into Muslim affairs”.
This can then easily evoke many Muslims’ painful memories of being overpowered by non-Muslim powers like the Western colonialists, making open and rational discussions difficult if not impossible.
So, do Syariah laws affect Muslims only?
The answers really depend on what types of laws and what types of offences. And the key here is really the relationship between parties governed by laws.
For example, family laws govern family members, whose relationships are either natural or voluntary. If family members are of the same faith, they can be subject to a faith/custom-based law without much difficulty.
The same cannot be said about criminal laws, which govern criminals and victims.
The criminal-victim relationship is neither natural nor voluntary — do you ever get to choose your thief/robber/ murderer/assailant/rapist?
If the criminal and victim happen to be of the same faith, then their common religious criminal law can apply without difficulty.
But can we ensure that criminals always prey on their fellow co-religionists?
Can we ask all potential criminals to take an Akujanji oath that “I will check the religious status of my potential victims before committing a crime so that the non-believers can be excluded”?
The supporters of Hudud (fixed) and Qisas (retaliatory) punishments like to claim that non-Muslims are not affected so they should not object.
Under these laws that introduce these punishments in Kelantan and Terengganu, there are seven types of Hudud offences: theft (sariqah), robbery (hirabah), fornication (zina), sodomy (liwat), unsubstantiated accusation of fornication/sodomy (qazaf), liquor consumption (syurb) and heresy (irtidad or riddah).
There are two broad categories of Qisas offences: homicide (Qatl-al’amd, Qatl syibhi-al-‘amd, Qatl-al-khata’) and bodily injury.
It is true that non-Muslims cannot be charged for liquor consumption, heresy, or even committing theft, robbery, fornication, sexual slander, homicide or bodily injury against a Muslim.
If fully enabled, the Kelantan Syariah Criminal Code II (KSCCII) “shall apply to every Muslim who is mukalaf [18 years above and of sound mind] for any offence under this Code committed by him in the State of Kelantan.” (Section 2)
Constitutionally, only the Malay Rulers are exempted as they can only be tried under a Special Court presided by common law judges.
So, what happens if an adult Muslim commits theft, robbery, homicide or bodily injury against a non-Muslim?
The non-Muslim victim will be tried under the KSCCII. Affected? Definitely.
Since we are told that Hudud punishments (amputation, death, crucifixion) and Qisas punishments (retaliation, for death and bodily injury) can deter crimes, so, wont non-Muslims benefit from this protection?
Here is the catch: non-Muslims are not qualified to testify, even when they or their loved one are victims. Neither are women, Muslim or non-Muslim.
Sections 39-41 of the KSCCII stipulate that Hudud and Qisas punishments can only be meted out if there is confession by the accused or syahadah testimony by at least two witnesses (except zina or liwat) who are “just adult male Muslims” (lelaki Islam yang aqil baligh dan adil).
If a Muslim thief or robber preys on non-Muslims in their homes, he or she is likely to face only imprisonment or whipping under the “colonial” Penal Code, because there may not be two “just adult male Muslims” to witness the crime.
However, if the Muslim criminal preys on Muslim families, he or she stands a good chance to be tried under KSCCII and lose a limb if convicted for Hudud punishment.
Will this not encourage Muslim criminals to prey on non-Muslims instead of Muslims?
Where is the justice when victims are denied even the competence to give testimony?
Where are maqasid syariah (the higher purposes of syariah laws) that should be about preserving lives or wealth, and not just imposing punishments?
Before Syariah evidence laws are changed to ensure equality between Muslims and non-Muslims and to accept forensic and photographic evidences, claims that non-Muslims are not affected by Hudud and Qisas punishments (for theft, robbery, homicide or bodily injury) are out of, at best, ignorance, and at worst, utter dishonesty.
So, please stop the lie or talking down and understand the non-Muslims’ legitimate fear: unless the agenda of establishing Hudud and Qisas punishments is abandoned, any move to expand the criminal jurisdiction of Syariah Court will inevitably be questioned and opposed.
Wong Chin Huat