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 UMNO’s 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 Syari’ah 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 Shari’ah. 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 Syari’ah 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 Syari’ah 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 Syari’ah 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. Syari’ah Court has
no jurisdiction over non-Muslims. If the State Legislative Assembly makes a law
to empower the Syari’ah 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 Syari’ah 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 God’s 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
Melaka
04 April 2015
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