Stop wasting our time, hudud can never be implemented - Law expert

Besides being unconstitutional, Hudud laws can never be implemented in the country or even in the Kelantan state as the amendment to the Bill would need a two-third majority for it to be passed.

University Malaya's law expert Prof Gurdial Singh Nijar said a simple majority vote is not sufficient to implement the Islamic criminal law.

So, this means, even if PAS can persuade UMNO and the half of Parti Keadilan Rakyat (PKR) to join hands with the Islamic party to vote in favour of hudud, the bill cannot be passed.

PAS has 21 MPs while UMNO has 88. PKR has 29 (but only 28 can vote as Permatang Pauh MP Datuk Seri Anwar Ibrahim is currently in jail for his sodomy conviction).

There are 222 MPs and for the hudud bill to be passed, PAS needs to obtain at least 148 votes.

“Hudud bill cannot be passed with simple majority as the bill creates new offences and procedures in respect of criminal law and the administration of justice,” said Gurdial.

He said Constitution is the exclusive jurisdiction of the Federal government and not the state.

“This means that the creation of offences that are in the federal list or dealt with by federal law are in federal hands. The Constitution explicitly says that states cannot create and punish offences with regard to matters included in the Federal list,” he said.

He cited theft, rape and robbery which are punishable under the Penal Code as federal law.

“First point, states cannot make laws on these criminal matters even though these are said to be also crimes against Islam. The 1993 Kelantan and Terengganu hudud laws are clearly unconstitutional,” he said.

He said amendments must be made to the Constitution for the bill to be passed and so, any amendments to the Constitution, would need a two-third majority.

He also raised questions that the hudud bill could violate the Article 4 of the Constitution.

“This Article says that any law passed after Merdeka Day that is inconsistent with the Constitution will be void to the extent of its inconsistency. So certain fundamental constructs of the Constitution cannot be altered– for example to amend the Constitution to abolish parliament. This is the fundamental basis and fabric upon which the Constitution is founded,” he said.

He said although it is difficult now to say what will happen if the bill is passed, he said there will be a lot of litigation challenging the constitutionality of the bill or the act amending the bill.

“Even if the bill is passed how will it be implemented? Powers of the police are under the federal list not the state list,” he said adding that the state has no authority over the police force.

The Kelantan State Legislative Assembly had last week passed the amendments to the Syariah Criminal Code II 1993 (Amendment 2015).

All the 12 Barisan Nasional (BN) assemblymen from UMNO supported the bill, tabled by Menteri Besar Datuk Ahmad Yakob of the PAS-led state government.