Law expert says Constitution does not forbid hudud

By Yow Hong Chieh

October 01, 2011

KUALA LUMPUR, Oct 1 — Constitutional law expert Datuk Dr Abdul Aziz Bari has challenged the Bar Council’s claim that no state in Malaysia can enact hudud laws as such matters fall under federal jurisdiction.

He said the Federal Constitution had clearly set out the respective jurisdictions of federal and state governments, pointing out that “power on Islamic law belongs to the states”.

“As such it is wrong for Parliament to make laws limiting the powers of the syariah court in the form of the Syariah Court Act 1965.

“One could go to court and ask it to declare the legislation unconstitutional,” he said in a statement today, adding that the Constitution never explicitly stated that secularity should be the benchmark.

Abdul Aziz (picture)also disagreed with the Bar Council’s claim that the Constitution prevented Muslims from being charged under Islamic law for offences already provided for under federal legislation.

The issue in hudud cases was Islamic law and not criminal law, he said, citing the Supreme Court case in Mamat Daud 1988 where the issue of public order gave way to Islam that has been put under the jurisdiction of the state.

“This is the problem when the Bar said criminal jurisdiction belongs to the federation and not the states. The key here is Islam, not criminal law,” he said.

Abdul Aziz added that there was no question of double jeopardy as parallel systems have existed “from Day One”, and noted that there were already two notion of crimes under the Penal Code and jenayah syariah (Islamic criminal law).

“In other words, two systems is not a problem and we are not the only country in the world where this duality prevails,” he said.

“Kelantan was right in arguing that it would use the existing syariah criminal law system. The working of this system has never attracted... double jeopardy as claimed by the Bar.”

The Bar Council said yesterday that no state was empowered to implement hudud law on its own as such matters were the purview of the federal government.

Council president Lim Chee Wee had explained that the Federal Constitution only allowed individual states to enact laws and respective punishments for offences against Islam.

He pointed out that these offences excluded those already provided for under federal legislation and that there could not be any replication of state laws with federal laws.

Lim had also said it was unconstitutional to provide different forms of punishment for Muslims and non-Muslims.

The Kelantan PAS government has said that it will push ahead with plans to introduce hudud law despite Pakatan Rakyat (PR) agreeing earlier that Islamic criminal law was not part of its joint policy.

State PAS deputy commissioner II Datuk Mohd Amar Nik Abdullah was quoted by The Staryesterday as saying that the implementation of hudud law was only a “matter of time” but that the party would take into account current opposition to the law.