(Kota Kinabalu) Wednesday 9th April 2014 “The attempt by the PAS Government in Kelantan to table two private member bills soon in Parliament seeking a declaration that the Kelantan Syariah Criminal Court or HUDUD laws be implemented in the State must be rejected,” said Datuk V K Liew, the former Deputy Minister in the PM Department.
“We must understand that our Federal Constitution does not allow the implementation of hudud law by individual states in the Country. Hence, the passing of the enactment by the PAS-led Kelantan State Legislative Assembly way back in 1993 to implement Hudud in Kelantan is unconstitutional,” said Datuk VKLiew, who is also the Chairman of the Malaysia Law Reform Committee.
“Our Federal Constitution only gives individual states the power to enact laws creating offences by persons professing the religion of Islam, against the precepts of Islam and the punishments accorded for such offences.”
“In Islamic jurisprudence, hudud includes crimes such as rape, sodomy, theft, robbery, adultery, making unproven accusations of adultery, causing physical hurts, drinking intoxicants etc.”
“Essentially, Hudud laws are penal laws in nature.”
“And many of us are aware that Penal laws come under the jurisdiction of Parliament. Hence individual state such as Kelantan State Legislative Assembly has no power to pass or enact Hudud laws on its own. The enactment made in 1993 was void from the beginning.”
“It has no binding effect on Parliament.”
“It is impractical and unworkable for two systems to exist in a jurisdiction such as ours. Technically there will be two sets of system - one for the Muslims and another for the non-Muslims – covering the same offences.”
“It means that a Muslim who is charged in the Syariah Court for the hudud offences mentioned above (rape, sodomy, theft, robbery, adultery etc) can be charged again in the Criminal Courts as the offences mentioned fall within the Penal Code. This is double jeopardy and it is prohibited in any legal system.”
“Further complication may arise, as we have seen recently in some custodial cases involving a Muslim convert and a Non-Muslim wife. In our context, the existence of two sets of systems for Muslim and Non-Muslim will paralyse our criminal system.
“This is especially true when we have a situation where the offenders in the sexual offences mentioned above namely rape, sodomy and adultery involved non-Muslims.”
“For example, the complainant is a Muslim while the accused is a non-Muslim, or vice versa. The question is which court will the accused be charged? In the Syariah Court or the Criminal Court?”
“Technically, the accused can be charged in both courts.”
“Then we will have problems with procedure and evidential rules as in Hudud law requires 4 witnesses to be produced to prove a sexual offence while the criminal courts require corroboration and medical evidence, amongst others.”
“On punishment on adultery offences, media reports say that Hudud provides that a convicted adulterer will have to be stoned to death.”
“In essence, Hudud law cannot and should not be implemented in any state in Malaysia.”
“No state in the country should be given the power and the right to set up its own criminal system of law. It causes division and confusion in our multiracial society.”
“We should focus on strengthening our rule of law and uphold the sanctity of our Constitution.”
“We must understand that our Federal Constitution does not allow the implementation of hudud law by individual states in the Country. Hence, the passing of the enactment by the PAS-led Kelantan State Legislative Assembly way back in 1993 to implement Hudud in Kelantan is unconstitutional,” said Datuk VKLiew, who is also the Chairman of the Malaysia Law Reform Committee.
“Our Federal Constitution only gives individual states the power to enact laws creating offences by persons professing the religion of Islam, against the precepts of Islam and the punishments accorded for such offences.”
“In Islamic jurisprudence, hudud includes crimes such as rape, sodomy, theft, robbery, adultery, making unproven accusations of adultery, causing physical hurts, drinking intoxicants etc.”
“Essentially, Hudud laws are penal laws in nature.”
“And many of us are aware that Penal laws come under the jurisdiction of Parliament. Hence individual state such as Kelantan State Legislative Assembly has no power to pass or enact Hudud laws on its own. The enactment made in 1993 was void from the beginning.”
“It has no binding effect on Parliament.”
“It is impractical and unworkable for two systems to exist in a jurisdiction such as ours. Technically there will be two sets of system - one for the Muslims and another for the non-Muslims – covering the same offences.”
“It means that a Muslim who is charged in the Syariah Court for the hudud offences mentioned above (rape, sodomy, theft, robbery, adultery etc) can be charged again in the Criminal Courts as the offences mentioned fall within the Penal Code. This is double jeopardy and it is prohibited in any legal system.”
“Further complication may arise, as we have seen recently in some custodial cases involving a Muslim convert and a Non-Muslim wife. In our context, the existence of two sets of systems for Muslim and Non-Muslim will paralyse our criminal system.
“This is especially true when we have a situation where the offenders in the sexual offences mentioned above namely rape, sodomy and adultery involved non-Muslims.”
“For example, the complainant is a Muslim while the accused is a non-Muslim, or vice versa. The question is which court will the accused be charged? In the Syariah Court or the Criminal Court?”
“Technically, the accused can be charged in both courts.”
“Then we will have problems with procedure and evidential rules as in Hudud law requires 4 witnesses to be produced to prove a sexual offence while the criminal courts require corroboration and medical evidence, amongst others.”
“On punishment on adultery offences, media reports say that Hudud provides that a convicted adulterer will have to be stoned to death.”
“In essence, Hudud law cannot and should not be implemented in any state in Malaysia.”
“No state in the country should be given the power and the right to set up its own criminal system of law. It causes division and confusion in our multiracial society.”
“We should focus on strengthening our rule of law and uphold the sanctity of our Constitution.”
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