Saturday, 4 April 2015

On Hudud - yes, I’m finally writing something on it (sorta)

1. I have read the Malaysian Bar President's press statement of 20/3/2015 titled "Hudud is Unconstitutional, Discriminatory and Divisive". I agree with it.

2. I have read the letter/article by Fatihah Jamhari titled "Answering the Malaysian Bar on the hudud". I disagree with the analysis.

3. I have read the keynote address of the ex-Chief Justice, Abdul Hamid Mohamad, given at a seminar titled, "Implementation of the Islamic Criminal Law (hudud, qisas, ta'zir) in Malaysia - Prospects and Challenges" on 01/4/2015.

He was the judge who wrote the decision in the Federal Court case of Latifah Mat Zin v. Rosmawati Sharibun [2007] 5 CLJ 253. He has expanded on that judgment in this keynote address.

I am glad that he has highlighted salient points on the issue, which I will reproduce here. They elegantly go to the heart of the matter.

They are (the very important parts are in bold):-

3A. 'Do not misunderstand and think that "criminal law" is under federal jurisdiction, while the "Islamic criminal law" is under the jurisdiction of the state. The Constitution only allows the State Legislature to enact laws for offences committed by persons professing the religion of Islam against the precepts of Islam, even then if it is not in respect of matters included in the Federal List, that is, "criminal law".'

3B. 'Before Merdeka there was no "religion of the Federation". In fact, the Malay Rulers objected to UMNOs proposal to make Islam the official religion of the Federation. ... religious matters which fell under the jurisdiction of the states were limited to family law. In most states, there were no Syariah courts then. It was under those circumstances that provisions regarding criminal law and offences against precepts if Islam were enacted. Thus, criminal law is placed under federal jurisdiction."

3C. 'Both the Federal Parliament and the State Legislative Assembly may not make law with regard to matters under the jurisdiction of the other.'

3D. 'offences that have existed in the Penal Code since 1936 and in force when the Federal Constitution was enacted, for example, causing of death to others, theft, robbery, rape and causing injury to other persons, necessarily fall within the words "criminal law" used by the drafters of the Constitution. If not, what else is "criminal law"?'

3E. 'among the hudud offences, there are "criminal law" offences provided for in the Penal Code while others are not. ... For example, adultery, accusing another person of committing adultery and offences associated with consumption of alcoholic drinks. It is arguable that such offences are not "criminal law".'

3F. 'if hudud punishments were to be imposed for federal offenses, it can only be done as a federal law, that is, as criminal law, not as "offences relating to precepts of Islam"

... Parliament may choose whatever punishment for any criminal offence, including punishments in accordance with Shariah. The law would apply to Muslims and non-Muslims. As criminal law it is under the jurisdiction of the Civil Court. Civil Court has jurisdiction over Muslims and non-Muslims. ... This situation may be compared to the law on Islamic banking and finance and takaful.'

... 'it should be emphasised that the federal criminal law must apply to all Muslims and non-Muslims because it is a general and not a private law and offenses provided for in the State List. If it is made applicable only to Muslims, it contravenes the provisions of Article 8 of the Constitution because it is discriminatory on ground only of religion and therefore unconstitutional, null and void.'

... 'with regard to offenses that are not provided for in the Penal Code or any other federal law, but have already been provided for in the Syariah Criminal Law Enactment States, they may be made hadud offenses under state law if the existing obstacle is removed. The obstacle is not a constitutional obstacle but an obstacle by federal law that limits the punishments that could be provided in the state law and given jurisdiction to the Syariah Court. That law is the Syari’ah Court (Criminal Jurisdiction) Act, 1965. If the Federal Government is willing to amend the act to allow the State Legislature to impose hudud punishment, the State Legislative Assembly may make such a law. As the law is a state law under List II of the Ninth Schedule (State List) it applies only to Muslims and falls under the jurisdiction of the Syariah Court. There is no constitutional issue here.'

3G. 'If we do that, the effect will be that some hudud offences would be a federal criminal law that applies to all Muslims and non-Muslims and tried by the Civil Court. Besides, there will also be hudud offences which are under the state law that only applies to Muslims and administered by Syari’ah Court. Should we have such laws? I leave it to you to answer for yourself.'

3H. 'In Malaysia, any law made must be in compliance with the Federal Constitution. ... if the State Legislature makes it applicable also to non-Muslims, the law is unconstitutional, null and void. Syariah Court has no jurisdiction over non-Muslims. If the State Legislative Assembly makes a law to empower the Syariah Court to try non-Muslims, the law is also unconstitutional, null and void.'

3I. 'we often hear people saying that such offences will only be made applicable to Muslims. It is only partly right. ... with regard to federal criminal offenses, such offenses are not personal law or offences relating to the precepts of Islam" ... It is a public law. That's why prosecution is done by the Public Prosecutor, on behalf of the country. ... if the law imposing hudud punishments for criminal offences under federal jurisdiction apply to Muslims only, it is inconsistent with Article 8 of the Federal Constitution and, therefore unconstitutional, null and void.'

3J. The speech then goes into a discussion of Article 76A of the Federal Constitution and how it impacts the Syariah Criminal Code (II) Enactment 1993 (Kelantan) as well as the Syariah Criminal Code (II) (1993) 2015 Enactment. The discussion is excellent.

3K. He then suggests 2 possible 'solutions' within the existing framework of the Constitution. But he is emphatic when saying,

'Whether the first or the second option is chosen, it is not a satisfactory solution. From the legal and administrative perspective, it will create new problems that did not exist before. Do not blame the Constitution for it. The Constitution does not envisage such things. It clearly divides the jurisdiction over criminal law and jurisdiction over offences against the precepts of Islam. The problem arises when the State Government tries to take over the legislative power over criminal offences that lie under the Federal jurisdiction. That is the root cause of the problem.'

3L. His conclusion is sagely, and full of humility. I reproduce it in full here:

'With respect, on the issue of hudud, I find that there is a lot of confusion regarding the law and the implementation. We should be able to differentiate the discussion regarding the law and discussion regarding the implementation. What we are discussing now is the implementation. We are not questioning the law. To raise issues that should be considered in the implementation is not challenging the law. Caliph Umar Ibn Al-Kattab suspended the implementation of hudud during a famine. No one accused him of challenging hudud and challenging Gods law. He only decided that, in that situation, at that time, it was not suitable, indeed it would lead to injustice if the application of hudud were to be continued. So, he suspended its application. Remember, hudud is only a means, not the end. The end is justice. Something similar happened in Pakistan in our time. When the Hudood Ordinance was enacted in 1979, the offence of rape was made a hudud offence. Subsequently, there were cases of injustice to victims of rape who became pregnant as a result of it and who could not produce the required number of witnesses ending in being convicted for adultery. In 2006, the offence of rape was removed from the Hudood Ordinance and placed under the Penal Code again and tried by the Civil Court, until now. I am aware that my speech may disappoint many people. But, if you want to hear my honest opinion about the reality from the perspective of the Constitution and the law, that is it. Borrowing the words of Imam Abu Hanifah, "This is only my opinion. If there is a better argument follow it.I would add, If there is a better argument, I too will follow it.'

4. I urge you to read his speech in full. It is a wise analysis of the issue.

Jason Kay

04 April 2015

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