Bar Council: Kelantan's syariah law change unconstitutional

Amendment to the Kelantan syariah enactment is unconstitutional because the changes to the Syariah Courts (Criminal Jurisdiction) Act 1965 (RUU355) have yet to be passed by Parliament, the Bar Council said.

Yesterday, the Kelantan state legislative assembly voted unanimously to pass an amendment to the Kelantan Syariah Criminal Procedure Enactment 2002, which, among other things, would allow syariah offenders to be whipped publicly.

“The Kelantan state legislative assembly has acted in excess of its jurisdiction by passing the enactments without the amendment to RUU355 being passed first.

“(And) the hudud laws passed by the state legislative assembly also cover offences found under the Penal Code.

“Therefore, we are of the position that one cannot impose (whipping) on a syariah offence, which also appears in the Penal Code, and are against public (whipping),” said Bar Council syariah law committee chairperson Kuthubul Zaman Bukhari when contacted by Malaysiakini.

The former Malaysian Bar president referred to Article 75 of the Federal Constitution that states “when any state law is inconsistent with the federal law, the federal law shall prevail, and the state law shall, to the extent of the inconsistency, be void”.

He also stressed that as a UN member, Malaysia should not allow public whipping as it is a form of torture.

“The Bar Council urges the government to comply with international human right norms and principles, especially the United Nations Convention Against Torture.

"As Malaysia is a former member of the Human Rights Council, it should be inspired to uphold universally accepted human right principles,” he said.

Apart from the Bar Council, MCA has also questioned the constitutionality of the provision to allow public whipping.

'Deplorable form of humiliation'

Sisters in Islam (SIS) has called the move to legalise public whipping “a deplorable form of humiliation and shaming”.

“(We) remain firm in our position against (whipping) as a form of torture under the Universal Declaration Human Rights (UDHR),” it said in a statement today.

Kelantan Deputy Menteri Besar Mohd Amar Nik Abdullah yesterday reportedly justified the amendment, saying it was in accordance with Islamic law.

SIS challenged this justification.

“We demand the Kelantan government reveal to us where exactly in the Holy Quran does it command punishments such as public caning,” it said.

It quoted a verse in the Quran (16:125) that reads: “Invite all to the way of the Lord with wisdom and beautiful preaching, and reason with them in the ways that are best and most gracious”.

“Any laws passed under the name of Islam must take into account the most fundamental teachings of the Quran based on justice and mercy and the right to preserve human dignity.

“Do not deceive the Muslim population here by brandishing the holy religion of Islam to justify these deplorable actions,” said SIS.

It thus demanded the Kelantan government repeal the amendment “and observe Article 5 of the Universal Declaration Human Rights (UDHR) that no one shall be subjected to torture, cruel or degrading form of punishment”.

SIS also called upon the federal government to intervene.

Former information minister Zainuddin Maidin has also condemned the provision to allow public whipping, saying it will tarnish the federal government’s image as he claimed BN was now in cahoots with PAS, which governs Kelantan.- Mkini