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Monday, May 30, 2016

Confusion on ‘Hadi’s Bill’ is explained in Article 74

Image result for hadi and hudud

COMMENT This article is to explain, in simple terms, the constitutional aspect of the recent ‘Hudud Bill’ or ‘Hadi’s Bill’ that has caused much confusion and anxiety.
Article 74 (1) of the Federal Constitution states that Parliament may make laws with respect to any  of the  matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).
Article 74 (2) of the Federal Constitution states that the legislature of a state may make laws with respect to any  of the  matters enumerated in the State List (that is to say, the Second  List set out in the Ninth Schedule) or the Concurrent List.
Article 75 of this constitution states that if any state law is inconsistent with a federal law, the federal law shall prevail and the state law, to the extent of the inconsistency, shall be void.
For the purposes of discussion here, allow me to zoom in straight to the matters that are said to be in controversy, ie, offences under the civil law and offences under Islamic law.
Item 4 (h) of the First List (Federal List) in the Ninth Schedule states that Parliament may make laws with respect to civil and criminal law and procedure and the administration of justice, including, among others, creation of offences in respect of any of the matters included in the Federal List or dealt with by federal law.
This is where our Penal Code and all other Acts that create offences related to drugs or fireams, etc, play their role to all Malaysians.
Item 1 of the Second List (State List) in the Ninth Schedule states that the legislature of a state may make laws with respect to Islamic law and personal and family law of persons professing the religion of Islam, including, among others, creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in regard to matters included in the Federal List.
Cannot use Islamic criminal law on non-Muslims
Item 1 of the Second List (State List) in the Ninth Schedule also states that the legislature of a state may make laws with respect to  Islamic law and personal and family law of persons professing the religion of Islam, including, the constitution, organisation and procedure of syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences, except in so far as conferred by federal law.
So you see, there can never be a situation where a non-Muslim could be subject of a criminal offence under Islamic law in the syariah court because the Federal Constitution expressly prohibits it.
However, a Muslim is subject to federal criminal laws, because that is expressly provided in the Federal Constitution, and by logical extension, cannot  at the same time be subject to Islamic criminal laws for the same offence.
So you see, there is no ‘pick and choose’, so to speak, when it comes to criminal offences created by federal law.
Why in Parliament, and not the state assembly?
We then ask the question, what is this Hadi’s Bill or Hudud Bill, and why is it being introduced in Parliament, and not the state legislative assembly?
We must first understand that Parliament passed the Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988). This is an Act to confer jurisdiction upon Syariah Courts constituted under any state law for the purpose of dealing with offences under Islamic law.
The power for Parliament to do this is found under Article 76(1)(b) of the Federal Constitution, which states that Parliament may make laws with respect to any matter enumerated in the state list for the purpose of promoting uniformity of the laws of two or more states.
It appears that this Hadi’s Bill or Hudud Bill is actually an amendment bill. That means that there is a proposal to  amend or introduce a section of an existing Act passed by Parliament earlier. That is why this bill is being introduced.Forget about the timing it was being introduced, or the manner in which it was introduced.

The  fact of the matter is that the amendments sought to this Act are only meant for the purpose of promoting uniformity of the state laws because each state passes its own laws on Islamic matters. We must keep that in mind.
The state law is still subject to its State List, and if it is inconsistent with a federal law, it can be struck down.
Honestly, I do not understand the state of confusion that parliamentarians from MCA, MIC and other parties are in.

PUTHAN PERUMAL is an advocate and solicitor of the High Court of Malaya.- Mkini

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