The proposed amendments for Syariah Courts (Criminal Jurisdiction) Act 1965, or Act 355, only focus on increasing the sentences without specifying the offences, pointed out prominent lawyer Ambiga Sreenevasan.
"The offences are not named in this amendment. In other words, the offence is defined by the punishment, not the other way around.
"We have to now scour all the state legislation and see what could possibly fall in the scope of that punishment, and then we can derive by that what is covered," she said, in a debate on the Act 355 amendments in Petaling Jaya last night, which was attended by more than 100 people.
At the debate organised by secular group Bebas, Ambiga and fellow lawyer and activist Haris Ibrahim argued against the motion ‘Act 355 amendments should be made into law’, while lawyers Lukman Sheriff Alias and Aidil Khalid argued in favour.
Lukman had earlier said the amendments are not a substantive law which creates offences, and that it is each state's prerogative, as enshrined in the Federal Constitution, to enact such laws instead.
"(Act 355 amendments') function is only to increase the sentencing limits and it does not introduce any new offences.
"It is more of a procedural law as opposed to a substantive law. Substantive laws are the state enactments.
"Each of these substantive laws is not done at whims and fancies; it must go through the state's legislature," Lukman said.
Responding, Ambiga said there must be more clarity in the amendments, especially because the new proposed limitations on the sentences are significantly higher than its current limits - around 10 to 30 times higher.
Currently, the maximum punishment that can be meted out by the syariah courts is three years' imprisonment, RM5,000 fine and six strokes of the rotan. The proposed amendments seek to increase this to 30 years' imprisonment, RM100,000 fine and 100 strokes of the rotan.
There must be justification for the more severe punishments, she said, citing the example of the introduction of the death sentence for drug offences and how the severity of the punishment had to be justified in Parliament before it was passed.
"No other reasons are given as to why you need to increase these sentences to the extent that it is being increased. If you're going to increase the sentences as much as you want, you have to tell Parliament what is reason.
"So far, the only reason given is you want to strengthen the Syariah Court. We are all for that. My question is, how does this achieve that? My argument is that it doesn't," she said.
‘It is not hudud’
Ambiga also argued that the Act 355 amendments are unconstitutional as it brings in some of the hudud offences into its provisions, though she agreed that it does not include offences where the punishment is stoning or death.
"In my view, hudud is covered by this amendment. It would not have been covered before, it is now," she said.
In response, Lukman pointed out that "hudud-type offences" have existed for decades in Malaysia, even predating our independence, and have been applied on Muslims here for a very long time.
"To argue that this is about hudud is not correct because (a form of) hudud has existed for many years… (in Malaysia).
"The difference now is that the sentences are being increased, but this is not new, it has been done before," he said, referring to the amendments to Act 355 in 1984.
Lukman conceded that it would be fair to argue about the limits of the sentences, but it is completely wrong to say that hudud is being introduced through the amendments.
Ambiga said it would assuage everyone's fears if this was specifically mentioned in the proposed amendments.
"The best way to protect everyone is to state it in the legislation. If you say it's not hudud, then put it in the law," she said.- Mkini