Once again, the Private Member’s Bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 has come under the spotlight. The passing of this Bill has grave repercussions and affects all Malaysians (and not just Muslims) as it is in violation of our Federal Constitution.
If this Bill is passed, it will result in two parallel criminal justice systems which would be contrary to the Federal Constitution, the supreme law of the country. In the event of a conflict between a provision in the Federal Constitution and any other law, the Federal Constitution is supreme (article 4(1)).This mechanism acts as a checks and balance that the rule of law is maintained ; in order that laws are not made at the whims and fancies of legislators at the expense of the citizen.
This Private Member’s Bill is being pursued in order to meet the ultimate goal of the implementation of hudud law in the state of Kelantan. This begs the question: how is it possible to have the Penal Code applying to regulate criminal offences for all Malaysians, and at the same time have a separate system of criminal (hudud) law for the state of Kelantan alone? It simply does not make sense.
Leave aside the technical legalities, this policy would be simply impractical and create a great deal of confusion in its implementation.
For example, if two Muslims committed the same offence, one in Kelantan and one in Selangor, would it mean that the Muslim who committed the offence in Kelantan would be subject to a more heinous punishment? Consider the offence of theft, for instance.
Could amputation of a limb become a punishment in Kelantan but not the other states in Malaysia? Or what if a Kelantan Muslim commits an offence in another state – which jurisdiction would apply?
Would the civil criminal court hear the case or a Syariah criminal court? In which state would the hearing take place? Who decides?
What would happen if there is a conflict between police forces in the two states with regard to the execution, enforcement and jurisdiction of these offences? Is this obfuscation not a travesty against justice itself?
Not to mention the sheer confusion caused amongst both the public and the law enforcers such as the police. When the law is obscure or lacks clarity; the rule of law itself becomes absent; the real amputee and victim.
Such a system would also disrupt our constitutional and federal system which regulates the relationship between the federal government and the states. This relationship is provided for in Part VI of the Federal Constitution ; where Articles 73 to 79 stipulate Parliament’s exclusive power to make law at a federal level. Issues concerning internal security, criminal offences and investigation; and public order, for instance, are expressly within the domain of the Federal government.
Article 75 reiterates the superiority of the Federal Law by stating that : if any state law is inconsistent with a Federal law, the Federal law shall prevail and the State law shall be, to the extent of the inconsistency, be void.”
Having two parallel systems to regulate criminal justice would also be unconstitutional for another reason. It would affect fundamental principles involving equality; fairness; consistency and uniformity of laws (under Article 8 of our Federal Constitution and the concept of the rule of law).
For instance, a non Muslim and a Muslim could jointly commit a theft, but be treated differently. The Non Muslim may face jail and the Muslim may face the amputation of his hand.
Furthermore, it must be reiterated that a conflict between Syariah Law and Federal Law affects all Malaysians; not just Muslims. The Syariah Courts’ Criminal Jurisdiction is subject to limits imposed by Federal Law of a maximum sentence of three years’ imprisonment; whipping of up to 6 strokes; and a maximum fine of RM 5,000. This is what is referred to loosely as the “365 Safeguard”.
However, if this Bill becomes law, it could allow the Syariah courts to significantly increase criminal punishment.
It is the view of this writer that any implementation of hudud in any form would be clearly unconstitutional; inequitable ; impractical and a grave violation of the rule of law.
It is fervently hoped that all parties will come together in a show of unity to oppose this Private Members’ Bill in the remembrance that Malaysia is a secular country based on the foundations of the rule of law and a supreme Federal Constitution which is ultimately our nation’s guide and guardian.
Source : Meera Badmanaban@The Heat Malaysia Online