The Star
Reflecting On The Law BY SHAD SALEEM FARUQI
Reflecting On The Law BY SHAD SALEEM FARUQI
There are provisions for the federal legislature to authorise Kelantan to implement its Islamic criminal enactment.
PARTI
Islam SeMalaysia (PAS) appears determined to introduce a Private
Member’s Bill in Parliament this June to implement its Syariah Criminal
Code Enactment of 1993. The Enactment had, two decades ago, sought to
apply hudud, the Islamic penal code, to Muslims in Kelantan. However, it
could not be implemented due to many constitutional hurdles.
Federal-state division:
First, under Schedule 9, List II, Paragraph I, States have authority
relating to “creation and punishment of offences by persons professing
the religion of Islam, except in regard to matters included in the
Federal List”.
Criminal
law and procedure, administration of justice, jurisdiction and powers
of all courts, creation of offences in respect of any of the matters
included in the Federal List or dealt with by federal law are in federal
hands. Theft, robbery, rape, murder, incest and unnatural sex are all
dealt with by the federal Penal Code. These offences are, therefore, out
of bounds for the States even though they are also serious wrongs in
Islamic criminal jurisprudence.
Second,
Schedule 9, List II, Paragraph 1 clearly provides that Syariah Courts
shall have jurisdiction only over persons professing the religion of
Islam.
This
means that Syariah Courts have no power to apply the hudud laws to
non-Muslims even if the non-Muslims consent to be so subject.
Jurisdiction is a matter of law and not of submission or acquiescence.
Third,
the Constitution in Schedule 9 List II para 1 says that Syariah Courts
“shall not have jurisdiction in respect of offences except in so far as
conferred by federal law”.
The
relevant federal law is the Syariah Courts (Criminal Jurisdiction) Act
1965. It imposes limits on penalties that the Syariah Courts can impose.
These are maximum three years jail, RM5,000 fine and six lashes. Death
by stoning, amputations and life imprisonments are outside the powers of
the States.
Fourth,
police, prisons, reformatories, remand homes and places of detention
are all in the Federal List. Therefore, State-run detention or
rehabilitation centres enforcing hudud penalties are all beyond State
powers.
New momentum:
PAS is hoping that these significant hurdles can be overcome if it
takes the battle to the federal Parliament and gets the federal
legislature to authorise Kelantan to implement its Islamic criminal
enactment. Indeed, such provisions exist.
Article 76A:
This Article permits the Federal Parliament to extend the legislative
power of the States to enact laws on matters in the Federal List. This
means that if the political equation is favourable, the Federal
Parliament could by a simple majority pass an Act to authorise Kelantan
to enact laws on crimes in Kelantan. The Kelantan law would then
supersede any federal law on the point. In addition, under Article
80(4), the federal government can by law extend the executive authority
of the State to cover the authorised federal topic.
Private Member’s Bill:
Perhaps Kelantan intends to initiate a Private Member’s Bill to launch
the Article 76A initiative. Private members are those MPs not holding
ministerial posts. They may, under Standing Orders of the two Houses,
draft a Bill and seek leave of the House by way of a motion to introduce
the Bill.
If
leave is granted, then the Bill shall be referred to the Minister
concerned. With his report, the Bill can be taken up for second reading,
debate and vote.
Such
a Bill requires a simple majority of those present and voting. With 21
MPs from PAS, 88 from Umno and some Muslim MPs from PKR and Sabah and
Sarawak, the Bill could squeeze through. The political dynamics is, of
course, immensely complicated.
Constitutional crevices:
Presuming that PAS succeeds under Article 76A to make inroads into the
Federal List or through a Private Member’s Bill to legislate for
criminal law in Kelantan, will the hudud issue be settled once for all?
No one with knowledge of constitutional law will argue that the issue is
straightforward and simple. Even if the State Enactment is passed, it
may be challengeable in a court on constitutional grounds.
For
example, if the State law on crime is made applicable only to Muslims
and two thieves, one a Muslim and the other a non-Muslim, on conviction
receive radically different penalties, is this not a flagrant violation
of the rule of equality before the law under Article 8?
Article
8 forbids differentiation between persons on the ground of religion
“except as expressly authorised by this Constitution”. There is an
exception in Article 8(5) in relation to personal law. “This Article
does not invalidate or prohibit any provision regulating personal law”.
Matters
of theft, robbery, rape, incest and homosexuality are by no stretch of
imagination matters of personal law. This means that it is arguable that
our Constitution does not permit two thieves, similarly situated, to be
treated differently for purposes of the law relating to punishment.
Alternatively,
the Kelantan hudud law could apply to both Muslims and non-Muslims
alike. In such a case, constitutional objections will arise that our
Constitution does not permit the syariah to be imposed on non-Muslims.
It
would be different, of course, if Malaysia were a full-fledged Islamic
state. Then the hudud or any other uniform criminal law would apply to
all.
Which
leads one to the perennial polemic about whether Malaysia is an Islamic
or secular state? The issue is immensely complicated and cannot be
covered here in detail save to say that we have a supreme Constitution.
The syariah applies in only a limited (though expanding) field and only
to Muslims.
Any
change to this arrangement will necessitate radical amendments
to many provisions of the Constitution, require special two-third
majorities in both Houses, consent of the Conference of Rulers and
consent of the Governors of Sabah and Sarawak.
It
is clear that the PAS attempt to secure the enforcement of its 1993
Islamic criminal law is part of its broader aspiration of an Islamic
state. There are many slippery slopes and constitutional conundrums.
Shad
Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and
teacher of the law who aspires to make difficult things look simple and
simple things look rich. Through this column, he seeks to inspire change
for the better as every political, social and economic issue ultimately
has constitutional law implications. He can be reached at
prof.shad.saleem.faruqi@gmail.com. The views expressed here are entirely
his own.
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