Art Harun | October 04, 2011
The Malaysian Insider

OCT 4 — I have stated in my article, “Of wet dream, nightmare and Marty McFly” that the implementation of hudud is a Constitutional impossibility until and unless two-thirds of our Members of Parliament would vote to amend the Federal Constitution to allow it to happen. I also grimly stated in that article that the time when such Constitutional amendment is moved would be the first time when our Members of Parliament would vote solely or predominantly along racial and religious lines regardless of party policy or party whip.

The Bar Council has since issued a statement which basically echoes my opinion. Lim Chee Wee, the Bar Council’s President was quoted as saying:

“Hudud cannot be implemented within the current constitutional and legislative framework.”

My friend, the learned Professor Aziz Bari was reported to have disagreed with the Bar Council’s view. The learned Professor was quoted to say:

“The key here is Islam, not criminal law.”

The learned Professor pointed out that the Federal Constitution has set out the respective jurisdiction and powers of the Federal and State legislature. As the powers to legislate on matters pertaining to Islam rests with the State, he argued that the State, including Kelantan, may pass hudud laws accordingly. He also refuted that such a move would result in double jeopardy for Muslim wrongdoers as, in his words:

“In other words, two systems is not a problem and we are not the only country in the world where this duality prevails.”

I have the highest respect and regard for the learned Professor but I beg to differ on his opinion on this matter.

While I acknowledge and admit that the respective State Legislative Assembly (“SLA”) has the power to legislate on matters pertaining to Islam, I am somewhat doubtful that the SLA may pass any kind of law which creates offences and prescribes punishment for those offences in accordance with the tenet of Islam, especially when such offences and punishments are already created and prescribed by the Parliament.

The Federal Constitution divides the legislative powers between the Parliament and SLA quite clearly. The Parliament, or loosely, the Federal government, has the power to legislate over matters specified in List 1 (or otherwise known as the “Federal List”) of the 9th Schedule of the Federal Constitution. The SLA on the other hand may legislate on those matters in List II (also known as the “State List”) of the 9th Schedule. In addition, there are matters which may be legislated by both the Parliament and the SLA. These are contained in List III of the 9th Schedule (also known as the “Concurrent List”).

Included in the Federal List is, among other things, “civil and criminal” law; the constitution of all courts other than the Syariah Courts and the jurisdiction and powers of all such courts.

That much is clear. All this while, it is the Parliament which creates and defines all criminal offences as well as prescribing all punishment for those offences. There is no doubt about that. (In this respect, there are already laws governing murder, theft and slander, which are three of the hudud offences prescribed by the Quran. The only hudud offence which is not criminalised by the secular law is adultery).

In the meantime, the SLA may pass laws relating to several Islamic matters. Let’s reproduce the whole paragraph 1 of the State List, so as not to cause any confusion*:

Except with respect to the Federal Territories of Kuala Lumpur and Labuan,

i. Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs. Zakat, Fitrah and Baitulmal or similar Islamic religious revenue, mosques or any Islamic public places of worship;

ii. creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List;

iii. the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over person professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law;

iv. the control of propagating doctrines and beliefs among persons professing the religion of Islam;

v. the determination of matters of Islamic law and doctrine Malay custom. (emphasis is mine).

* The above provision is actually contained in one paragraph. I have broken it into several parts denoting the different areas of Islamic matters which the SLA may legislate to maintain clarity.

The learned Professor opined that “power on Islamic law belongs to the State.” He then referred to the decision of our Supreme Court (then, the highest Court in Malaysia) Mamat bin Daud vs Govt of Malaysia where the Court held that a provision in the Penal Code which impacted on Islamic law was invalid as the Parliament had no power to legislate over Islamic matters. The learned Professor therefore challenged the Bar Council’s view that the Kelantan State does not have the power to enact the hudud law.

It is quite clear from the State List reproduced above that various Islamic matters are within the purview of the SLA. The decision in Mamat bin Daud reinforces the view that strict adherence to the respective lists by the Parliament and the SLA in enacting laws is called for. In that case, a provision was included in the Penal Code by the Parliament which makes it an offence for anybody to cause religious disunity. The purport of that section was to maintain public order, a matter which is quite obviously within the purview of the Parliament. However, in a 3-2 majority decision (with the late Eusoffee Abdoolcader, among others, dissenting), the Supreme Court held that that provision impinges on Islamic matters, which is in the State List and consequently the Parliament had no power to legislate on it.

It follows from that decision that the Court jealously guarded the purview, width and breadth of the respective Federal and State lists. No amount of encroachment will be allowed by either the Parliament or the SLA on each other’s powers. Although the offence created by the Parliament in that case falls under public order, which comes under the purview of the Parliament, the Court still viewed that as an encroachment of the SLA’s power to legislate on Islamic matters.

It is therefore clear and obvious that the Court took a strict and stringent approach in determining the rights and powers to legislate of the Parliament and the SLA.

Applying that strict rule, it is my humble opinion that the Kelantan State Legislative Assembly does NOT have the power to legislate on hudud laws or the power to create criminal offences and prescribe “Islamic” punishments for those offences. Matters concerning civil and criminal laws are clearly within the power and purview of the Parliament by virtue of the Federal List.

To allow the Kelantan State Legislative Assembly to enact a law to create hudud offences and prescribe punishment for those offences would amount to the usurpation by the Kelantan State Legislative Assembly of the Parliament’s power to legislate over criminal matters. Applying the strict approach in Mamat bin Daud case, any law passed by the Kelantanese State Legislative Assembly as such would be void for being ultra vires the Federal Constitution.

Is it true that hudud comes within the State List and therefore the SLA has the power to legislate on it? We have to analyse the above State List to answer this question.

Paragraph (i) above concerns family, personal, inheritance and trust matters. That much is clear. Hudud does not come within the ambit of paragraph (i) above.

The bone of contention is paragraph (ii) above. It states that the SLA has the power over the creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List.

There are three important points to be made about this provision.

Firstly, the said provision is far narrower than the power given to the Parliament. Paragraph 4 of the Federal List spells out in the widest term possible the power of the Parliament to legislate over “civil and criminal law.” That includes everything under the sun. The only exception is “Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts and succession, testate and intestate.” Any other matters would come within the power of the Parliament to legislate.

Contrast that provision to paragraph (ii) above. Paragraph (ii) does not say “Islamic civil and criminal laws.” Nor does it say “the creation and punishment of offences IN the precepts of that religion.” It also contains a very important exception, namely, ”except in regard to matters included in the Federal List.”

That brings me to my second point. Paragraph (ii) above only gives the SLA power to create and punish offences AGAINST the precepts of Islam. It does not give power to the SLA to create and punish offences IN the precepts of Islam. The established hudud offences, namely, murder, adultery, slander and theft are not offences against the precepts of Islam. They are offences within or in accordance with the precepts of Islam.

The failure to observe and appreciate this aspect of the provision has often led to a misconception that the State has the power to create any kind of offences as long as those offences are regarded as offences IN Islam. That is entirely wrong.

No less than our Federal Court, in Sulaiman Bin Takrib v Kerajaan Negeri Trengganu & Anor has, with respect, fallen into such interpretational misdeed when it held that the SLA had power to create offences “against the precepts of Islam” although by doing so, a criminal offence would be create so long as no such offence has been created by the Parliament. Former Chief Justice Abdul Hamid in his judgment says:

“In the instant case, as the offences are offences against the precept of Islam, as there are no similar offences in the federal law and the impugned offences specifically cover Muslims only and pertaining to Islam only, clearly it cannot be argued that they are “criminal law” as envisage by the Constitution.”

It has been my absolute pleasure and honour to have appeared before the learned CJ on some occasions. FCJ Abdul Hamid was a learned Judge for whom I have the highest of respect. However, his Lordship’s test in the above case is, in my humble opinion, wholly unsatisfactory.

The test is not whether there has been an offence created by the Parliament on the issue at hand. Rather the test is whether the offence created by the State Legislative Assembly is “against the precepts of Islam.” In this respect, offences AGAINST the precepts of Islam are totally different in nature and manifestation from offences IN the precepts of Islam.

This brings me to my third point. Paragraph (ii) above clearly prohibits the SLA from legislating on matters which “are included in the Federal list.” How clearer can that be? Is there any ambiguity there?

The prohibition is as clear as daylight. As long as the matter sought to be legislated by the SLA is included in the Federal list, the SLA is prohibited from legislating on it. That prohibition is absolute. Applying Mamat bin Daud above, that prohibition must be strictly observed. It does not say the prohibition only applies if the matters are included in the Federal list and they have been legislated by the Parliament. CJ Abdul Hamid is wrong in Sulaiman Takrib case in this respect.

It is clear therefore that the State list does not vest the Kelantan State Legislative Assembly, or any other SLA for that matter, the power to pass hudud laws or to create criminal offences. The law passed by the Kelantan State Legislative Assembly on hudud, in my humble opinion, is void for being ultra vires the Federal Constitution.