The move to implement hudud, the Islamic penal code, can be challenged in court even if it is passed in the Kelantan legislative assembly today and if it progresses to the parliamentary level and federal lawmakers vote to allow its enforcement, lawyers said.
Bar Council constitutional law committee chairperson Firdaus Husni said the current framework of Malaysia’s Federal Constitution did not allow for hudud implementation, based on several articles.
They included Article 8, on the equality of all persons, and Article 7, which stipulated protection against retrospective criminal laws and repeated trial.
She said hudud could also be challenged using Article 3, which stated that Islam was the religion of the federation.
“But Article 3 does not mean that ‘Malaysia is an Islamic country and hudud, therefore, must be implemented’.
“Instead, the 1993 Supreme Court case held it to mean that Islam in the context of Article 3 only relates to rituals and ceremonies,” Firdaus told The Malaysian Insider.
Legislators in Kelantan, one of Malaysia’s poorest states in the northeast of the peninsula, are set to vote on amendments to the state’s Shariah Criminal Code Enactment II (1993) today.
It cannot be enforced, however, even with the legislative assembly’s stamp of approval, because of constitutional roadblocks.
Like Firdaus, constitutional lawyer Syahredzan Johan said implementing hudud would go against the constitution’s provision on equal protection under the law and non-discrimination.
This would be violated as hudud would introduce different penal laws for Muslims and non-Muslims in Kelantan, if it came into force.
In addition, there would be different penal laws for Muslims in Kelantan and Muslims outside the state.
He said Article 8 in the constitution on equality allowed for several exceptions, one of them being “personal laws”, but hudud could not qualify as such.
“Some will argue that this is personal law just like khalwat, but it is not. Offences such as theft and robbery are clearly criminal laws and must be implemented uniformly,” he said.
The Islamic penal code prescribes penalties like amputation of limbs for theft.
Implementation of penal laws which were not uniform would be discriminatory and contrary to Article 8, he added.
PAS lawyer Hanipa Maidin held a different view, saying the argument that criminal law only came under federal jurisdiction could not hold.
This is because there were currently Shariah criminal laws enforceable in all states, whether they fell under hudud or not.
“So they may say it is criminal law, but we are saying hudud is Islamic law.
“For instance, when you want to enact something on education and it is about an Islamic kindergarten, how do you define it, under education or Islamic law,” he said.
He also quoted the Supreme Court decision of Mamat bin Daud vs the Government of Malaysia, which held that a provision in the Penal Code on public order which impacted on Islamic law was invalid as the Parliament had no power to legislate over Islamic matters.
In the 1988 case, Section 298A of the Penal Code under which Mamat was charged was declared to be an unconstitutional trespass on state legislative power by the Parliament.
The Supreme Court held that the law was purported to be for public security but was, in fact, a regulation of religion, and given that religion is a state issue, the federal government could not use the legislation.
“The law was challenged on grounds that in pith and substance, it involved Islamic law.
“The highest court held that the law was under state jurisdiction, so Section 298A of the Penal Code was held unconstitutional,” Hanipa said of the Mamat case.
As such, he said, his view was that hudud was “not criminal law per se”, but fell under Islamic law, which was valid under the constitution.
“So there are always two arguments, both are valid, but let us agree to disagree,” he added.
The lawyers were asked to comment on the contention by Sabah DAP’s Sri Tanjong assemblyman Chan Foong Hin that any changes to introduce hudud in Kelantan must only happen with the consent of both Sabah and Sarawak.
Chan said in an open letter to Parliament Speaker Tan Sri Pandikar Amin Mulia that this was because the Ninth Schedule of the Federal Constitution categorically placed “civil and criminal law and procedure and the administration of justice” under the Federal List.
“If any state-level hudud is allowed, it is a blow to Federal Constitution, as it places the particular state (Kelantan) to be more superior then other states as the power on criminal justice under Federal List is transferred to State List, without consultation by the other states,” he said.
Sabah federal lawmaker Darell Leiking agreed with Chan, if it had been made clear then that Sabah Muslims would one day face Shariah criminal law in Kelantan, its people would have chosen to stay under the British or be independent instead of forming Malaysia together with Sarawak and Malaya in 1963.
The Penampang MP said Sabah agreed to join the federation on the basis that it was secular, and said dishonouring the basis of Malaysia’s formation was another attempt at destroying the promises of the country’s founding fathers.
“Barisan Nasional and Umno should answer if they want to honour the Malaysia Agreement 1963 and the Federal Constitution.
“It would be interesting to see if the government will support any request to change the criminal justice system in Kelantan,” Leiking said.
In his open letter, Chan urged Pandikar to “prevent any private member’s bill that is tantamount to nullifying the Malaysia Agreement and tearing Malaysia apart from being tabled”. – March 19, 2015.