Is Hadi’s bill about hudud punishments?

Wong Chin Huat
Published 28 May 2016, 3:11 pm

To save BN’s non-Malay components from the embarrassment of letting Hadi’s Private Member’s Bill on syariah court’s criminal justification to complete its first reading, Prime Minister Najib Razak reportedly denied that bill was about hudud law.

“I would like to clarify that the amendment (bill) is not hudud law, it is just to enhance the punishment from six times (of the rotan) to a few times, depending on the offences,” he said.

He also said, “It also involves the syariah courts and only involves Muslims. It has nothing to do with non-Muslims.”

Najib could be right about the second point as this bill now seems to be governing offences involving only Muslims.

But is this not about hudud?

No hudud law, only hudud punishments and offences

There is no such thing as hudud law. Hudud refers to punishments and offences.

Take the Kelantan Syariah Criminal Code II (1993) 2015 for example. It metes out three types of punishments:

i. Hudud (fixed) – applicable on theft, robbery, adultery, false accusation of adultery, sodomy, intoxication, heresy (called “hudud offences”)

ii. Qisas (retaliatory) – applicable on homicide and causing bodily injuries (called “qisas Offences”)

iii. Ta’zir (discretionary) – residual punishment in the forms of imprisonment and diyat (blood money) for hudud and qisas offences when the hudud or qisas punishments cannot be meted out because of evidence or circumstantial reasons.

Najib-Hadi’s gradualist approach

Kelantan’s (and also Terengganu’s) syariah criminal codes cannot be implemented because of two obstacles.

The first lies in the ninth schedule of the federal constitution, which places criminal justice in the federal list and syariah court as item 1 in the state list.

In Item 1, the power of the syariah court includes “creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in regards to matters included in the federal list”.

The second lies in the Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355). Section 2 of the Act imposes the so-called 3-5-6 limit on punishments meted out by syariah courts: imprisonment up to three years, fine up to RM 5,000 and whipping up to six lashes.

Hadi tabled a similar Private Member’s Bill last June. Both his bills last year and this year wish to remove the 3-5-6 cap. But Hadi’s bill this year is less ambitious.

Dewan Rakyat's Order Paper

First of all, “death penalty” is kept out of syariah court’s reach. This immediately takes out stoning for adultery by married offenders.

Secondly, while both bills make reference to tem 1 in state list of the ninth schedule, reference – presumably “except in regards to matters included in the federal list” – is used to exclude offences already covered by the federal law. That excludes the hudud offences of theft and robbery – which imposes amputation – and also interestingly sodomy, which is outlawed as unnatural sex under the Penal Code.

Last year, such exclusion was not heard off. Even doctors supportive of hudud punishments offered to perform amputation.

Caution however must be taken when one looks into the description (huraian) of the bill.

Paragraph 3 reads, “… Pindaan ini bertujuan untuk memperjelas bidang kuasa jenayah Mahkamah Syariah ke atas orang yang menganut agama Islam bukan hanya terhad kepada kesalahan terhadap perintah agama tetapi termasuk apa-apa kesalahan lain yang berhubungan dengan apa-apa perkara yang disebut dalam Butiran 1 Senarai Negeri yang dinyatakan dalam Jadual Kesembilan Perlembagaan Perseketuan“.

If the description (which might have been copied from the 2015 bill) reveals the real intention of the bill drafter, then Hadi actually hopes to change the constitutional provision that confines syariah offences to the violations of “precepts of religion” (perintah agama) by a normal bill.

However, the Najib-Hadi pact seems to pursue a gradualist approach in expanding syariah rule.

Not only the most controversial hudud punishments of amputation and stoning are taken out, the non-Muslims are also now excluded by excluding offences of theft, robbery, homicide and bodily injuries, where non-Muslims might be victims or witnesses to crimes committed by Muslims.

This makes Najib-Hadi’s agenda of syariah expansion look more reasonable and acceptable amongst the Muslims.

Some but not all hudud punishments enabled

What are the outcomes if Hadi’s bill is retabled and passed in the next parliamentary session?

Based on the restrictive interpretation, three hudud offences in the Kelantan’s code – theft, robbery, sodomy – and all qisas offences – homicide and causing bodily injuries – are excluded because they are already covered by the Penal Code.

Four offences – adultery (zina), false accusation of adultery (qasaf), intoxication (syurb) and heresy (irtidad dan riddah) – will be enabled but one more hudud punishment – stoning for married offenders – is excluded because it means to cause death.

This means that five more hudud punishments under the Kelantan Syariah Criminal Code II (1993) 2015 [KSCC II] would be enabled:

i. for adultery by unmarried offenders, whipping of 100 lashes

ii. for false accusation of adultery, whipping of 100 lashes

iii. for intoxication, whipping of 40-80 lashes

iv. for heresy, forfeiture of property

v. for heresy, imprisonment for an unspecified period in the hope of the offender’s repentance (the constitutionality of last two may be contested (see table below)

Table - Implication of Hadi Awang's Private Member's Bills on June 2015 and May 2016 on Hudud Punishments under Kelantan Syariah Criminal Code II (1993) 2015

Hadi’s bill is therefore about some hudud punishments – whipping is clearly one – albeit not all. Najib lies. Will his BN allies buy his lie as explanation?

Opening the floodgate

If Hadi’s bill is passed, it will affect not only Kelantan and Terengganu, which have in place virtually suspended syariah law that provides hudud punishments.

Other states may follow suit. Remember that proposals to expand syariah rule were made by Umno lawmakers in Selangor and Johor?

Also, the punishments may also be expanded.

For example, it will not make sense for unmarried offenders to be whipped with 100 lashes while married offenders go unpunished because they cannot be stoned.

How many lashes will married offenders get if the principle of heavier punishment for married offenders than the unmarried ones is to be followed?

The passing of Hadi’s bill – if it happens in October – it concerns more than the Kelantan’s code. It is a question of floodgates.

Just last December, two university students in Aceh were whipped in the public for “close proximity” (khalwat). The girl collapsed and was rushed to hospital after receiving five lashes.

Malaysians need open and respectful dialogues and debates on whether we want to see such scenes – for example 80 lashes for drinking, 100 lashes for adultery – in Kelantan and beyond. We need to hear each other out.

In these dialogues and debates, we must remember that Malaysia was founded in 1963 and her foundations are the Malaysia Agreement and the Inter-Governmental Committee (IGC) Report, which make her a secular federation.


WONG CHIN HUAT is a Research Fellow with Penang Institute, the state government think-tank on public policy.

  1. #1 by drngsc on Monday, 30 May 2016 - 2:14 pm

    Firstly, although this private Members bill was initiated by Hadi, it is not strictly a Hadi’s bill. It is more correct to call this a DUMNO / Hadi’s bill. Of course, it is 10% about hudud laws and 90% about DUMNO / PAS politics to retain Malays votes. It is a clever move unless Malaysians acn see through it and call their bluff. Massive Public hue and cry, to reject this hudud bill so that they will withdraw it. Chastise MCA who sits in cabinet with DUMNO and yet were sleeping and never aware was how their cabinet colleagues were plotting, and how ineffective they were. And most importantly, how little respect DUMNO has for MCA that they did not even have the courtesy to let them know before tabling. Yes, it is not just a hudud bill. The ramifications are tremendous. it is mainly politics. Malaysians must wake up.

  2. #2 by Bigjoe on Monday, 30 May 2016 - 8:03 pm

    I did not need to read the details of this version of the bill to have figured out what they did. I figured it out the moment that Prodigal Creep said ” it’s not Hudud”. It DEFINES his entire life, career, very person, character. HE IS NOT MUCH OF ANYTHING. He does not do his job, just make excuses and spend, spend, spend.

    Here is the real.low down. Najib has no respect for Hadi in reality because he think Hadi is never going to gain power and Hudud is never going to apply to him.

    BUT Hadi also think Najib is a dirt- bag. He believes that eventually, his kind will control his kind and laugh at him from heaven.

    Can it be sicker and irresponsible on.both sides?

  3. #3 by Bigjoe on Tuesday, 31 May 2016 - 5:01 am

    WCH says Najib is lying but the bigger liar is Hadi Awang. Why is this bill a mish- mesh? As WCH says, there are contradictions, unjust punishments between parties, loopholes. Najib and Hadi real function are lawmakers, to make laws that make sense, elegant and just. The crap this bill is shows all they thinking about is possible politics.

    Hadi is HABITUAL LIAR. Frankly, he is so lost in his self- righteous politics, he has no clue his lying is obvious to everyone who is objective.

    Update Syariah law? Give Muslim their rights? With crap legislation like this? It’s about 1MDB money and its about Lying preachers.

  4. #4 by good coolie on Tuesday, 31 May 2016 - 12:29 pm

    The Bill, if passed, would ENABLE the passing of State Laws which would be against the Federal Constitution. Do you think that our beloved PM would seek a Federal Court declaration that these laws are unconstitutional, or would he rely on Non-Muslims/Sabah-Sarawak citizens to do the dirty job, while he delivers unctuous, memorised, Pesta Aamatan/Hari Dawai greetings in their local dialects. Actually, it is the “Give Nambikai (Trust), get Tembikai” motif.

    Months after damage is done, the leaders of our beloved MIC, MCA, and Gerakan (Oh, I forget a certain PPP) party would carry memoranda to Najib protesting unintended consequences of the hooded law change. Remember 121(1A) my dear Malaysians? Najib may merely slap them on the hand as Badawi did to their predecessors, but don’t expect that Azalina to be soft on them.

  5. #5 by good coolie on Sunday, 5 June 2016 - 1:07 pm

    Why is Mahatir quiet about all this? Is he afraid that people will remember how he dealt with the the righteous justices and opened the way for the packing of the legal profession with people who wanted to undermine the Constitution and implement Islamic Law?

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