I AM not concerned about the political aspects of Pas’s private bill to amend the Syariah Court (Criminal Jurisdiction) Act 1965 that its president is tabling in Parliament.
Politicians have their own agenda in proposing, supporting or opposing a bill, which may or may not be legally justifiable.
What is important and what I am concerned about is that the politicians, as well as the public, should know what it is all about and its effects, if passed. Otherwise, the politicians will make their decisions whether to propose, support or oppose it either out of ignorance or misunderstanding and will, in turn, confuse and mislead the public.
Let us begin from the beginning: the Federal Constitution.
The Constitution provides that criminal law is a federal matter, meaning that it is within the jurisdiction of the federal Parliament to make laws regarding it. What is “criminal law” is not defined.
However, to make our discussion simple, the offences contained in the Penal Code are clearly “criminal law”. If not, what else?
Note that the Penal Code had been in existence since 1936 and was in force at the time the Constitution was drafted.
So, murder, rape, sodomy by whatever name, theft, robbery, causing hurt, indeed, all offences provided for in the Penal Code and other federal laws, are “criminal law”.
They are applicable to Muslims and non-Muslims alike, otherwise, it would be unconstitutional on grounds of discrimination contrary to Article 8. The law (criminal law) is administered by the civil court. Only the federal Parliament has power to amend it.
The Constitution also makes provisions empowering the Legislative Assembly of a state to make laws in respect to the creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the federal list.
Note the conditions mentioned:
OFFENCES committed by persons professing the religion of Islam,
AGAINST precepts of that religion,
EXCEPT in regard to matters included in the federal list.
There is yet another condition: it must not contravene the provisions of the Syariah Courts (Criminal Jurisdiction) Act 1965, which limits the type and extent of the punishments that the state law may provide.
So, the Legislative Assembly of a state may only make laws that satisfy all the four conditions. Otherwise, it is unconstitutional.
We now refer to the Syariah Criminal Code (II) Enactment 1993 (Kelantan) (Kelantan Hudud Enactment). It is naïve not to take note that for decades, Pas had been harping on the implementation of hudud as its main, if not the only, objective.
As early as 1993, the Pas state government of Kelantan had tried to implement hudud by passing the Syariah Criminal Code (II) Enactment, 1993 (Kelantan).
I have said, in no uncertain terms, that that law is unconstitutional because it contravenes the restrictions mentioned above.
Pas seemed to accept my view and started talking about moving a private bill in the federal Parliament under Article 76A (1).
One would have thought that the objective was to obtain the permission of Parliament for the state Legislative Assembly to make law regarding matters (offences) that fall under the federal list. But, that is not to be.
Instead, Pas is moving a private bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 to increase the punishments that the state Legislative Assembly may provide in a state law that it makes subsequently.
Now, let us look at the proposed amendment. Unfortunately, I am unable to obtain the proposed bill. All I am able to obtain from the Hansard is the proposed amendment, which is in Bahasa Malaysia. For the purpose of writing this article, I have translated it into English.
an may only be married off with the consent of the wali.
Suppose a qadhi were to marry her off first and then look for the wali to get his consent; would that marriage be valid when the wali (subsequently) gives his consent?
They all laughed. They understood it.
The more serious restriction, which is more difficult to overcome and about which no attempt has been made to overcome, is the constitutional restriction mentioned.
So, if the proposed amendment bill is passed by the federal Parliament, all that Pas may do is to get the Kelantan Legislative Assembly to pass another law providing for offences which are not “criminal law” (which falls under the jurisdiction of the federal Parliament to make laws), for example, zina (adultery), accusing a woman of committing zina, murtad (apostasy), consuming intoxicating drinks and the like.
Other offences, for which there are provisions in the federal laws, are a federal matter and outside the jurisdiction of the state Legislative Assembly to legislate.
So, Pas should remember that even if the private bill is passed, the Kelantan Legislative Assembly may only make law (a new one) in respect to those few offences mentioned above and provide hudud punishments for them, other than the death penalty. So, rajm, (stoning to death) and salib (cruxification) are out.
One wonders why Pas is prepared to make an exception in respect to the last two.
Do they also feel that they are “not suitable” any more?
All other provisions in the Syariah Criminal Code (II) in (1993) 2015 regarding hudud, qisas and ta’zir are outside the jurisdiction of the state Legislative Assembly to legislate.
They are “criminal laws”, a federal matter.
The new law made by the Kelantan Legislative Assembly will only apply to Muslims in Kelantan and will be administered by the syariah court.
Umno leaders should understand all these. Otherwise, they might be making yet another mistake.
What about the objections raised by the non-Muslim leaders of
Barisan Nasional component parties?
Again, I am not concerned about their politics. If they think that it serves their party’s political interests, it is their prerogative to object. But, when they start giving such reason as “it will benefit Muslims”,
I have to respond.
First, here again, they have “profit and loss” or the “fear of losing”
(kiasu) in mind. They are afraid that Muslims will benefit and that they will, therefore, lose. But how?
The law, if at all it comes into force, will only apply to Muslims.
So, if a non-Muslim commits adultery with a Muslim, the Muslim gets sentenced under the law and the non-Muslim goes free. Who benefits?
(For further details, please see my papers/talks on hudud, especially my keynote address, “Implementation of the Islamic Criminal Law (hudud, qisas, ta’zir) in Malaysia — Prospects and Challenges”, delivered at the Sultan Mizan Zainal Abidin Mosque, Putrajaya, on April 1, last year, available on my website.)
Tun Abdul Hamid Mohamad is former chief justice of Malaysia