The Hadi Awang private member’s bill is on the order paper and may be debated in the House this session after government matters are concluded
By Dr Kamarul Zaman Yusoff
A number of our laws that are outdated may and indeed should be amended in keeping with the times and current needs, Attorney-General Mohamed Apandi Ali said last month speaking to reporters.
Although the AG was referring specifically to the Common Gaming Houses Act which dates all the way back to 1953, nonetheless there are other laws too already past 60 years old, and their punishments now rendered wholly inadequate.
Apandi cited the maximum penalty of RM100 under the Minor Offences Act as one example of a fine where its amount has ceased to be a deterrent under present circumstances.
Another such outdated law, we might add, is Act 355 — the Syariah Courts (Criminal Jurisdiction) Act 1965.
When the Acts were first enacted, parliament had intended the legislation to be relevant.
Our current lawmakers, such as Abdul Hadi Awang who is MP for Marang, believe that the sentences available to punish syariah criminal offenders should also be increased befitting our evolved situation.
There is no reason why we should not rightly support Hadi’s efforts to update Act 355 that was created more than half a century ago.
Back in 1965
Act 355 was read for the second time during the parliamentary sitting on 3 March 1965 by Tun Abdul Rahman Yaakub, who at the time was the Minister of Land and Mines.
The Act was being introduced based on a constitutional need that arose at the time, he explained.
Since Independence, there have been many state enactments passed by the respective state legislative bodies that provide different punishments for offences that are enumerated in List II (State List), Ninth Schedule of the federal constitution, Abdul Rahman enumerated.
The state’s power to make such enactments are contained in Item 1 List II which states,
“…the constitution, organization 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;…”
Abdul Rahman clarified that Act 355, via its Section 2, gives jurisdiction to the syariah courts relating to these offences whereas Section 3 of the Act renders all offences tried prior to the coming into force of the Act as validly tried as if jurisdiction in respect thereof had been conferred on those courts by Federal law.
In the parliamentary debate, support for Act 355 was voiced by Mohamed Asri Muda, Fatimah Abdul Majid and Wan Abdul Kadir Ismail.
Act 355 source of syariah court jurisdiction
According to the Hansard, PAS president Mohamed Asri had stated that Act 355 was “a good effort in preliminary steps towards unifying the positions of the syariah courts throughout the nation”.
Federal legislator cum Wanita Umno chief Fatimah said, “indeed it is a must for a permanent law to be enacted to standardize the punishments for offences carried out in this country”.
Umno MP for Kuala Terengganu Wan Abdul Kadir said, “standardization of the enforcement of syariah laws has been the dream and aspiration of everybody in this state”.
In replying to Mohamed Asri, who asked for a guarantee that the limitations for stricter sentences would not be made absolute, Abdul Rahman in his closing statement mentioned: “The answer is yes… if the Parliament in the future thinks that the sentences in Section 2 are insufficient, the same can be amended”.
At that point in time (1965), it was noted by Mohamed Asri how Act 355 had granted powers of a magnitude to the syariah courts, and the heartening development was embraced positively by his Islamist party.
Later in 1984
The original jurisdiction given to the syariah court in the year 1965 was for imposition of a fine not exceeding RM1,000, imprisonment not more than six months or a combination of both.
On 10 Oct 1984, Mohamad Yusof Mohamad Nor, who was then a Deputy Minister in Prime Minister’s Department, suggested for its scope of penalties to be increased.
Mohamad Yusof recommended the imposition of a fine not exceeding RM5,000, imprisonment not more than three years, whipping not more than six lashes or any combination of these sentences.
Both the original Act and its amendment were passed without any objections.
It has been more than 32 years since the last amendment to Act 355 and thus timely that the Act is amended again.
Today in 2017
Earlier on 25 July 2016, a Malay Consultative Council spokesman alleged that the proposed amendment to Act 355 and the Act itself are unconstitutional.
Pursuant to Article 74(1) of the federal constitution, parliament can only make laws relating to items specifically stated in the Federal List or Concurrent List (that is List I and List II of the Ninth Schedule), said the council’s Legal and Constitutional Bureau chairman Abdul Aziz Abdul Rahman.
Abdul Aziz asserted that if the Hadi amendment to Act 355 is passed by parliament, the council will challenge it in court.
I wish to pose a question:
Why is it only now that the proposed amendment to Act 355 and the Act itself are publicized as unconstitutional whereas nobody alleged the same when the Act was first passed in 1965 and amended in 1984?
As originally stated by federal minister Abdul Rahman in 1965, Act 355 was necessitated from the existence of Item 1 List II, Ninth Schedule of the federal constitution.
Despite the existence of Article 74(1), there is another Article – which is 76(1)(b) of the federal constitution – that clearly states:
“(1) Parliament may make laws with respect to any matter enumerated in the State List, … that is to say: … for the purpose of promoting uniformity of the laws of two or more States.”
⇓ There is no need for these liberal activists Azrul and Azira to make a fuss about amendments to Act 355 either
Moving with the times
There is no need for the states that do not wish to adopt Hadi Awang’s proposed amendment to Act 355 to make any fuss.
Article 76(3) stipulates that an amended law is not in force in any state until the law is adopted in an enactment passed by the individual state legislative bodies.
Hence if they do not like the amendment, they need not apply them.
The non-Muslims also need not make any fuss because as provided for in Item 1 List II, syariah courts only have jurisdiction over those professing the religion of Islam.
This amendment is also in line with the Yang di-Pertuan Agong’s royal decree during the opening ceremony of the fourth session of the 13th Parliament on 7 March 2016.
His Majesty had urged the authorities to expedite “steps to strengthen religious institutions and the efficient execution of Islamic administrative laws through the empowerment of syariah courts”.
Daulat Tuanku.
Dr Kamarul Zaman Yusoff is a fellow at the Institute of Strategic Islamic Studies Malaysia (Iksim) and director of the Institute for Malaysian Political Analysis (Mapan).-Tanjak
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