This study is primarily concerned with the two unsuccessful attempts to enforce Ḥudūd law by PAS, an Islamic political party in the state of Kelantan, Malaysia through their Ḥudūd bill known as Syariah Criminal Code (II) 1993 in that year and again in 2015. While previous studies have largely focused on legal technical issues and how to overcome them, this study takes a different approach by critiquing the Ḥudūd bill itself. In the light of the above, the key feature of this study is the reappraisal of the historical development of Ḥudūd law followed by a critical review on its feasibility in the modern-day climate, specifically within the context of Malaysia. Additionally, this study endeavours to provide a comprehensive view of the efforts to enforce Ḥudūd law in the state of Kelantan, in order to understand these events. Subsequently this study employs the doctrine of ijtihād, in an attempt to offer fresh interpretation of Ḥudūd laws, as well as exploring other efficient ways of introducing revised Ḥudūd laws into the Malaysian legal framework. The outcome of this study seeks to demonstrate that any efforts to implement Ḥudūd law in present day Malaysia must consider the political, legal and social climate of contemporary reality. Furthermore, that the principle aspects of Sharia can be maintained, whilst substantial revisions and necessary reforms are made to certain aspects of fiqh, which have been formulated by the classical jurists from a premodern period.
Within the context of Malaysia, the core issues behind approaches such as those that have been taken by the state of Kelantan in legislating the Ḥudūd bill, are revealed by this study. It illustrates a tendency to equate the Ḥudūd bill with Sharia, whilst in reality the Ḥudūd bill is merely a replication of the classical jurists’ Ḥudūd law. Consequently, this understanding leaves no room for criticism or improvement, (which would be viewed as tantamount to questioning the divine will). This study suggests that the polarisation of the discourse of Ḥudūd, principally between the PAS and UMNO Party leaders, has led to a lack of intellectual debate on the issue. In order to overcome this, this study proposes that any legal reform to introduce Ḥudūd law should be advocated on a basis of public interest (maṣlahah). This is imperative to provide a middle ground between both parties- the opponents and proponents- including all factions of society to freely debate and discuss the process of law making or reform. Finally, this study proposes that the discourse of Ḥudūd in Malaysia must go beyond partisan politics in order to stimulate and enhance intellectual discussions between all parties, and all concerned.
