A former Court of Appeal judge yesterday said passing PAS president Abdul Hadi Awang's proposed amendments to Act 355 could give rise to potential abuse through greater discrepancies in punishments meted out by syariah courts throughout Malaysia.
Former judge Mohamad Ariff Md Yusof in his constitutional law lecture at Universiti Malaya yesterday, argued that Abdul Hadi's proposed amendments, while in accordance with constitutional provisions on jurisdiction of the syariah courts, could lead to abuse and discrepancies in sentencing.
"It could lead to abuse... If you accept the higher limits now, what will happen is that each state will be looking at it (sentencing) differently.
"If the upper limit is low, the discrepancies will not be so great," he said.
The current version of Hadi's proposed amendments to the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) aims to increase the sentencing limits to a maximum RM100,000 fine, maximum 30 years' jail sentence and 100 lashes, up from the present maximum RM5,000 fine, maximum three years jail sentence and six lashes.
This was a review from Hadi's original motion tabled in May last year which gave a blank cheque for states to punish syariah offenders, with the exception of imposing the death penalty.
"In my view the amended version is constitutional because it complies with all the requirements," he said, citing among others the proposed amendments does not go beyond the jurisdictions of the syariah courts.
"Can it be done (tabled)? Yes. It can be done, constitutionally.
"Should it be done the way it has been done? No.
"I believe the upper limits are still too high," he said in arguing the necessity to introduce the higher limits.
In fact, he pointed out there are already existing punishments for syariah offences in several states that could be seen as disproportionate to the act.
"To take one example, to teach without tauliah in some states can carry a fine of up to RM5,000 which is very high," he said referring to the recent conviction of Shah Alam MP Khalid Samad who was fined for giving a lecture at a mosque without accreditation from state religious authorities.
'No option to opt out'
During the question-and-answer session, lawyer Siti Kassim had stood up to ask whether she as a Malay-Muslim who objected to the amendments, has a way to "opt out" from being governed by the law.
"If I can opt out of the law, I will not say a word against it because it does not affect me," said Siti who has been a vocal critic of the amendments.
In response, Mohamad Ariff said just like there is no option to opt out of being governed by the Penal Code, all Muslims would be subjected to the amendments if passed.
"The answer is no. There is a certain moral code, a certain system, you have to abide by it.
"But what must be done is to have more intelligent discourse. There is nothing in Islam which says the current offences and punishments have to be maintained in its present form," he said in reiterating arguments against criminalising personal sins.
Perlis Mufti Mohamad Asri Zainul Abidin at a forum last Sunday argued against criminalisation of sins between man and God.- Mkini