Hudud and the Federal Constitution - Concerned Lawyers for Justice

THE Concerned Lawyers for Justice (CLJ) read with grave concern the press release issued by the President of the Malaysian Bar dated 20 March 2015, entitled “Hudud is unconstitutional, discriminatory and divisive.” Not only are the allegations encapsulated in the title uncalled for, they are also by and large based on erroneous, misconceived ad misconstrued understanding of our basic law due to selective, and not to mention outdated reading of the Federal Constitution, as well as the principles underlying hudud itself.

It is one thing to express concerns over how the passage of the Syariah Criminal Code (II) 1993 (Amendment) Enactment 2015 by the Kelantan State Government, could fit in the Malaysian Constitutional framework – which, should the need arises, could always be further fine-tuned so as to ensure harmonious and smooth implementations that does not offend the Federal Constitution – but it is a whole other matter to boldly and odiously claim that “laws in Malaysia do not have to conform to Islamic principles,” and “that Malaysia is a secular state,” by reference merely to selective reading of certain passages that had been taken out of context from the 1980s Supreme Court decision in Che Omar bin Che Soh v Public Prosecutor.

Let us be clear – the never-ending debate of whether Malaysia is a secular or theocratic Islamic state is irrelevant to the question whether hudud could and should be implemented. In fact the dichotomy in itself is wholly alien to the legal history of our nation, for many provisions in our criminal justice system, especially the Penal Code for offences such as bestiality – imported by the British via India – although secular in nature are also based on Christian concepts of morality. Likewise, after over half a century of independence, one would think that there shouldn’t be any bar for our legislatures, whether at the States or the Federal level, to pass laws based on Islamic principles, especially in the light of the fact that Islam is the religion of the Federation.

In this regard, CLJ wishes to place on record the following positions of the law and Constitution:-

• Syariah, or Islamic law, has always had a place within the states and territories that now make up modern day Malaysia. Malaysia and in particular Malaya prior to its independence as a federation of states in 1957 was a conglomeration of previously independent and sovereign Malay Muslim Sultanates that had in force within their respective territories criminal codes derived from Islamic jurisprudence and doctrine. This was recognised and confirmed in the well-known precedent of Ramah v Laton, wherein judicial notice was given in respect of Islamic law and the same was propounded;

• Islam’s place within our constitutional scheme is clearly recognised by Article 3 of the Federal Constitution and there are and have always been official state institutions set up to manage Islamic affairs, which clearly contradict the tenets of secularism and this is how the framers of our Federal Constitution intended our constitutional makeup to be;

• Che Omar Bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 was a late 1980s decision which was subsequently superseded by Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors [2007] 4 MLJ 585 wherein the Federal Court clarified the judgment in the former, and held that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, private or public, legal, political, economic, social, cultural, moral or judicial;

• On top of such broad finding by the Federal Court, the Court of Appeal in the 2013 case of Minister of Home Affairs & Ors v Titular Roman Catholic Archbishop of Kuala Lumpur, known as The Herald case, went further to hold that the position of Islam as the religion of the Federation is not merely ceremonial in nature, but rather it imposes positive obligation on the Federation to give effect by appropriate state action, to the injunction of Islam and able to facilitate and encourage people to hold their life according to the Islamic injunction spiritual and daily life. It is in furtherance of this that Malaysia already has a robust Islamic banking system governed by the Islamic Financial Services Act 2013, and the implementation of Islamic penal law or Hudud in the form of the Syariah Criminal Code (II) 1993 (Amendment) Enactment 2015 within Kelantan is only a natural evolution of the carrying into effect of this constitutional positive obligation required of by the state; • Hudud is not inconsistent with Article 5(1) of the Federal Constitution as the word “law” as defined in Article 160(2) of the Constitution includes written law such as state legislation, of which the Syariah Criminal Code (II) 1993 (Amendment) Enactment 2015 indeed is;

• Hudud does not offend the Constitutional prohibition of double jeopardy as protected by Article 7(2) of the Constitution nor does it constitute replication of any offences for which there already exists provisions under Federal law, as the Syariah Criminal Code (II) 1993 (Amendment) Enactment 2015 specifically precludes the application of the Penal Code for offences listed under this Enactment;

• Hudud does not offend the principle of equality before the law and equal protection of the law in Article 8(1) as decided cases on this stress the reasonable classification test which is itself divided into two limbs, intelligible differentia or who falls within what is sought to be legislated as opposed to who does not, in this case, Muslims as opposed to non-Muslims, and secondly whether the differentia is rationally related to the object of the legislation, in this case, Muslims who seek to be governed by the injunctions of Islam, which includes Hudud. Hudud also applies equally to men as well as women, so any suggestion that it contradicts Article 8(2) is simply absurd to say the least;

• While it is true that the legislative competence in respect of criminal law, procedure and the administration of justice fall under the Federal list in the Ninth Schedule, List 1 (Para 4) of the Federal Constitution, pursuant to Article 76A(1) of the Constitution, the Federal Government is empowered to delegate its matters to States, and it has done so vide the Syariah Courts (Criminal Jurisdiction) Act 1965. Provided that this Act is amended to remove the circumscription on offences to be tried according to punishment that is meted, there is no reason why Syariah Courts that have already been constituted within the existing legislative framework cannot be empowered to impose full punishments which are required of the Islamic penal law sought to be implemented; and

• Hudud does not in any conceivable way offend the fundamental liberties afforded by Part II of the Federal Constitution to all citizens in particular Muslims, in particular those already heretofore mentioned above.

Further, it must be stressed that in a democracy such as ours, the citizenry have the right to whatever criminal justice system they may please as long as the same does not contravene the Federal Constitution, which clearly Hudud does not. Hudud in fact, strengthens the Constitution. In this regard, CLJ reiterates our statement of 17th December 2014, entitled Hudud Reinforces the Constitution.

CLJ is greatly concerned with the way the newly elected President of the Malaysian Bar has chosen to move forward. When presented with an opportunity to be conciliatory, the Bar has, again, chosen to be divisive.

*Concerned Lawyers for Justice or CLJ is a civil movement consisting of lawyers who are concerned for the state of the Malaysian nation.

**The views expressed here are of the author/s and does not necessarily reflect Astro AWANI's.