Will hudud ever come into force?

Legal experts and political minds appear to be stuck in a minefield.

KUALA LUMPUR: With the Syariah Criminal Code Enactment II 1993 already tabled before the Kelantan State Assembly yesterday and expected to be passed today, questions are being asked as to how and when, if ever, that piece of legislation will come into force.

Legal experts claim that the enactment shows anomalies that exist in the Federal Constitution with regard to the separate and distinct powers of the federal and state governments and the real constitutional position of Islamic law.

Paragraph 1 of List II of the Ninth Schedule of the Federal Constitution gives the states power to enact Islamic laws. This includes “the creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List.”

The states also have power over “the constitution, organisation 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 [paragraph 1 of List II] but shall not have jurisdiction in respect of offences except in so far as conferred by Federal law.”

On the other hand, Paragraph 4 of List 1 of the Ninth Schedule gives the Federal Government jurisdiction over criminal law and procedure.

For Kelantan to implement the enactment, Parliament would need to enact a statute giving the state the necessary power.

“That in itself would not be an easy exercise,” a senior lawyer told FMT. “The particular act of Parliament would need to be precise in setting out the clear ambit and parameters within which the Kelantan enactment can operate. It must take utmost care not to offend fundamental liberties enshrined in the Constitution and must exclude matters contained in the Federal List, including criminal law and procedure.”

Already, there are stark differences in opinion.

Constitutional lawyer Syahredzan Johan believes that the creation of different penal laws and different punishments governing Muslims and non-Muslims at the Kelantan state level, and governing Kelantanese and non-Kelantanese Muslims at federal level, would offend Article 8 of the Constitution, which says that all persons are “equal before the law and entitled to equal protection.”

“Some will argue that [the Enactment] is a personal law just like khalwat, but it is not. Offences such as theft and robbery are clearly criminal laws and must be implemented uniformly,” the Malaysian Insider quotes him as saying.

Another Muslim lawyer, Firdaus Husni, suggested that the implementation of hudud law would offend Article 3 of the Federal Constitution, which provides that while Islam is the religion of the Federation, “other religions may be practised in peace and harmony.”

“Article 3 does not mean that Malaysia is an Islamic country and, hudud, therefore, must be implemented,” she was reported as saying, citing a landmark 1993 case in which, according to her, the Supreme Court held that “Islam in the context of Article 3 only relates to rituals and ceremonies.”

Lawyers even differ as to which list the Kelantan enactment would fall under – the State List or the Federal List.

The Insider quotes PAS lawyer Hanipa Maidan as suggesting that the enactment was Islamic law, which fell within the State List, and not criminal law, which fell within the Federal List.

Agreeing to disagree

Tellingly, however, he conceded, “There are always two arguments. Both are valid, but let us agree to disagree.” Giving the example of an Islamic kindergarten, he asked, “How do you define it – under education (Federal List) or Islamic law (State List)?”

Politicians themselves are irreconcilably divided on the matter, with some suggesting that the very basis of the formation of the Federation of Malaysia is being called into question.

Sabah DAP’s Chan Foong Hin takes the view that the Ninth Schedule to the Federal Constitution placed civil and criminal law squarely under the Federal List, and that the transfer of criminal justice to the Kelantan state would be tantamount to saying that Kelantan was superior to the Federation and all its other constituent states.

Another Sabahan, Penampang MP Darell Leiking, claimed that Sabah agreed to join the Federation on the basis of its secular laws. Otherwise, its people would have chosen to stay under British rule or remain independent, he was reported to have said.

Despite vociferous objections from various quarters, PAS appears determined to implement the law, even in the face of opposition from some moderates within the party.

According to a report in the Malay Mail Online today, the current PAS leadership believes that the law resonates with its religious foundations and allows it an opportunity to revive its waning influence with the Malay/Muslim community.

A determined Kelantan Deputy Menteri Besar Mohd Amar Nik Abdullah believes that PAS has the numbers to push the required legislation through Parliament.

Saying that only a simple majority of 112 votes was needed, he pointed to the fact that there were 132 Muslim MPs in the 222-seat Dewan Rakyat.

Relying on religious sentiment, he was quoted by the Malaysian Insider as saying, “I urge all Muslim MPs regardless of their party to join us when we table this private member’s bill in Parliament because this is a religious issue and not a political one.”

While DAP and East Malaysian lawmakers have vocally opposed the tabling of the enactment, PKR leaders have remained largely silent on the subject.

Umno, on the other hand, appears happy to milk the dispute for its own political gain, believing that it has the dual purpose of distracting the populace from recent unpopular policies and events while fracturing the Pakatan Rakyat coalition in the process.

Analyst Khoo Kay Peng was today reported by the Malay Mail Online as saying that Umno intends to prioritise Malay unity over a revival of the Barisan Nasional. He said it had lost all hope of regaining the Chinese vote.

Merdeka Centre for Opinion Research’s Ibrahim Suffian, however, believes that Umno has no real intention of supporting the legislation in Parliament as it is bound to face fierce opposition from within Barisan Nasional itself.

While on the one hand the Star Online reports that 11 Kelantanese Umno lawmakers have expressed their support for the Kelantan government’s initiative, it is worth noting that party elders appear happy to leave the matter to the conscience of Muslim MPs while waiting to see what impact it will have on the PAS leadership at its elections this June.