Hudud is Unconstitutional, Discriminatory and Divisive

The Malaysian Bar views with concern the passing of the Syariah Criminal Code (II) (1993) 2015 Enactment by the Kelantan State Legislature yesterday, in the Kelantan State Government’s effort to implement hudud — the class of crimes prescribed under Syariah law — in the state of Kelantan.

 

The Syariah Criminal Code (II) (1993) 2015 Enactment goes against the secular structure of our Federal Constitution, which does not envisage a theocratic Islamic state, or a parallel criminal justice system where Muslims and non-Muslims are subjected to unequal treatment before the law.

In Che Omar Bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, the then- Supreme Court held that laws in Malaysia do not have to conform to Islamic principles, and confirmed that Malaysia is a secular state.  Thus, if hudud were brought into the criminal justice system, it would result in the importation of Islamic penal law into a secular system.  This would result in a rewriting of the Federal Constitution. 

Hudud is also inconsistent with the following provisions of the Federal Constitution:

(1) Article 5(1) of the Federal Constitution confers to all citizens the right to life or personal liberty, which cannot be deprived “save in accordance with law”.  The word “law”, as defined in Article 160(2) of the Federal Constitution, does not expressly mention Syariah as part of the definition of law; 

(2) Article 7(2) of the Federal Constitution protects against repeated trials of accused persons in criminal offences.  A Muslim person, who is tried and convicted for an offence under the Penal Code, may then be exposed to a second trial for the same offence and punished under hudud laws.  This would be in breach of Article 7(2); and

(3) Article 8(1) of the Federal Constitution guarantees equality before the law and equal protection of the law.  It has been reported that the Syariah Criminal Code (II) (1993) 2015 Enactment passed by the Kelantan State Assembly would be applicable only to Muslims.  This would offend Article 8(1), as it would result in divergent procedures, separate evidentiary rules and differing punishment being applicable to Muslims as compared to non-Muslims, in respect of criminal offences.  A Muslim offender would also face heavier punishment under hudud laws for the same offence, compared to a non-Muslim offender who is not subject to hudud laws.  Further, the hudud laws entrench, and result in, injustice and discrimination against women and this would be contrary to Article 8(2). 

In any event:

(1) The framers of our Federal Constitution never intended for there to be a dual criminal justice system — one at the federal level for non-Muslims and the other at the state level for Muslims. Criminal law and procedure, and the administration of justice, fall under the Federal List (i.e. 9th Schedule, List 1 (Para 4)), and are exclusively within the legislative competence of Parliament.  It is therefore a subject matter solely within the legislative jurisdiction and power of Parliament;

(2) Hudud is also beyond the legislative capacity of State Legislatures, as set out in the 9th Schedule, List 2 (Para 1) of the Federal Constitution.  The Federal Constitution only allows the States to enact laws to create offences by persons professing the religion of Islam against the precepts of Islam, and the respective punishments for such offences. These laws must be with regard to explicitly provided areas of “Islamic law and personal and family law”. There is nothing in the State List that allows for the enactment and implementation of any form of criminal law including hudud, nor is this permitted under the jurisdiction and power of the State Legislatures;

(3) The scope of the punishments for offences against the precepts of Islam must be conferred by Federal law. The Syariah Courts (Criminal Jurisdiction) Act 1965 provides that the Syariah Courts in all States shall not exercise jurisdiction “in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding five thousand ringgit or with whipping exceeding six strokes or with any combination thereof.”  Hence, the penalties that the Syariah Courts can mete out are clearly circumscribed, and do not include the punishments provided under hudud; and

(4) There can be no replication of any of the offences within any Federal law with a different degree of punishment only for Muslims.  Further, these laws, if enacted, must themselves be consistent with fundamental liberties guaranteed to all citizens, including Muslims, under Part II of the Federal Constitution.

The passing of the Syariah Criminal Code (II) (1993) 2015 Enactment by the Kelantan State Assembly yesterday demonstrates the State Legislature’s indifference and disregard for our constitutional scheme. The Malaysian Bar calls upon the Kelantan State Assembly to respect and abide by the Federal Constitution, and repeal the Syariah Criminal Code (II) (1993) 2015 Enactment immediately.

Steven Thiru

President

Malaysian Bar

20 March 2015