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'Not a back door way to implementing hudud'


Dr Asyraf: ‘It is crucial to stress that Act 355 has nothing to do with hudud.’

Dr Asyraf: ‘It is crucial to stress that Act 355 has nothing to do with hudud.’

Deputy Minister in the Prime Minister’s Department Datuk Dr Asyraf Wajdi Dusuki addresses concerns raised by the Private Member’s Bill tabled by PAS.

ON Wednesday, Deputy Minister in the Prime Minister’s Department Datuk Dr Asyraf Wajdi Dusuki put up a Facebook post answering questions people might have on the issue of the Private Members’ Bill tabled by PAS president Datuk Seri Abdul Hadi Awang to amend the Syariah Courts (Criminal Jurisdiction) Act.

He denies that the amendment is a “back door” way to implementing hudud (punishment under Islamic law). The amendments are necessary, he says, because the current maximum punishment of three years’ jail or RM5,000 or six strokes under the Syariah law is outdated and inadequate as an effective deterrent.

If the amendment is passed, the respective state assemblies can decide on the quantum of the fine, the length of a jail sentence and the number of strokes for the offence. There will be no death penalty.

As for rape, he said, it would not fall under Syariah law as it is a criminal offence that comes under civil law.

The following is Dr Asyraf’s post from his Facebook page (facebook.com/drasyrafwajdidusuki):

Responding to 10 frequently asked questions (FAQs) on the amendment Bill to the Syariah Courts (Criminal Jurisdiction) Act 1965 (revised 1988) @ Act 355:

The following were my responses given during a dialogue session with non-Muslim representatives, particularly those from MCA and Gerakan Kelantan, held in Kota Baru on May 31, 2016.

In the first place, why is it necessary to amend Act 355?

The proposed amendment to the Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355) primarily aims at elevating the jurisdiction of the Syariah Court which is currently limited to the maximum punishment of three years’ imprisonment, or RM5,000 fine or six syar’ie strokes. Act 355 was last amended in 1984 to increase the punishment from the previous one of six months’ imprisonment and a fine of RM1,000.

The present punishments are not just outdated but their sheer limitation in scope fails to effectively serve as either private or public deterrence to offenders. Accordingly, the crux of the proposal is to increase the penalties to the maximum level as enshrined by the Syariah (Islamic law) save for the death penalty.

The exact quantum of fine, imprisonment and strokes of rotan for the respective offences will be left to the determination of the respective State Legislative Assemblies.

Isn’t 100 strokes extreme?

The implementation of the Syariah strokes of rotan is markedly different from the way it is currently carried out under the civil law. The Syariah strongly prohibits any form of harmful imposition of the stroke. For example, the strength of a stroke is predominantly measured by the level of its swing. The Syariah only permits the harmless kind of stroke – if a book is to be placed between the arm and the body of the person applying the strokes, the book must not fall during the swinging process. Clearly, the 100 strokes possibly imposed under Syariah is nowhere in comparison with the one harmful stroke given under civil law.

Would Act 355 indirectly affect non-Muslims?

It is impossible for non-Muslims to be subjects of the Syariah Court as the Federal Constitution (being the supreme law of the land) confines the jurisdiction of the Syariah Court to Muslims only. Section 2 of Act 355 clearly stipulates that only Muslims shall be triable and punishable in the Syariah Court.

Can Act 355 be regarded as a “back door way” to implement hudud?

It is crucial to stress that Act 355 has nothing to do with hudud. If hudud is to be implemented, it requires at least three statutory amendments to the Federal Constitution. Certainly it is not by amending Act 355, which merely relates to the jurisdiction of the Syariah Court as expressly pro­vided for in Item I, State List of the 9th Schedule, Federal Constitution.

Can the Federal Constitution be amended?

Yes, but only with the required two-thirds majority vote of the members of the Dewan Rakyat (House of Representatives), or 148 votes from the total of 222 MPs. In the current political scenario, assuming that all 135 Muslim MPs from Umno, PAS, PKR, PAN, PBB and DAP vote for any amendment, they would still fail to form the required majority to effect such an amendment. Accordingly, non-Muslim MPs possess equal rights and authority to determine the implementation of hudud.

Which is the relevant part in the Federal Constitution that needs to be amended to enable hudud to be implemented in Malaysia?

There are at least three parts in the Constitution that would require amendments for the said purpose:

(i) List II of the 9th Schedule to include additional criminal jurisdiction under the Syariah Courts as provided in Item I: namely, the inclusion of criminal offences such as theft, robbery, rape, murder and causing grievous hurt (offences currently prescribed by the Penal Code); and for the purposes of implementation, the enlargement of the jurisdiction of the Civil Court, police and prisons, all of which fall under Federal jurisdiction.

(ii) In addition to the above, Parliamentary approval under Article 76A is also needed to empower the State to pass and enforce those criminal laws which are within the Federal Lists.

(iii) Article 8 must be amended to include protection against potential double jeopardy and to avoid any discrimination, injustice or inequality of the rights of Malaysian citizens who may be subject to different laws due to their religion.

In other words, the amendment aims to enable two different sets of criminal laws which are to be applicable to Muslims and non-Muslims respectively.

Would the proposed amendment Bill to Act 355 pave the way to introduce hudud?

No, it will not. Hudud relates to six designated offences, four of which are classified as private offences, namely zina (adultery), qazaf (false accusation of committing zina), consuming liquor, and murtad (renouncing Islam); whereas the other two are public offences, ie theft and robbery.

The four private offences are currently provided for in the State laws as empowered by the State Lists of the Federal Constitution and subject to enforcement by the Syariah Court under Act 355.

Conversely, Act 355 is not empowered to enforce against the public offences, ie theft and robbery, which fall under Federal jurisdiction.

To reiterate, the amendment to Act 355 will only involve the existing offen­ces and their penalties as provided for in the respective States’ Criminal Enactments.

Would the enforcement later be unfair if, for example, a rape involves a Muslim and non-Muslim where the likelihood is that the Muslim shall be triable in the Syariah Court while the non-Muslim will have to appear before the civil court?

Rape is not a criminal offence under the Syariah enactment and Act, therefore it goes beyond the State’s jurisdiction. It falls within Federal jurisdiction, and is enforceable by civil courts as provided for under the Penal Code and the Criminal Procedure Code (the Federal law).

Would hudud lead the people to be subject to two sets of criminal laws, which is against Article 8 of the Federal Constitution?

This issue is irrelevant as the proposed amendment Bill to Act 355 does not have any relevance to hudud or any criminal offences under the Federal jurisdiction. Therefore, there is no issue of it being in conflict (ultra vires) with any part of the Federal Constitution.

Why didn’t the Government take the responsibility to present the Bill to amend Act 355?

Owing to the unique position given to the Syariah and its implementation under the Federal Constitution, the Government is obliged to observe certain prescribed processes and procedures in the course of empowering and elevating the Syariah Court.

To cite an example, the present priority is to enhance the status of the Syariah Court from three levels to five levels so it is on par with the Civil Courts. For this to take place, the Minister is required to present the motion before all the Malay Rulers (Sultans) to seek their royal consent befitting their position as the heads of Islam in their respective states.

As of today, the stance among the Malay Rulers is not unanimous due to certain factors. It is only with the unanimous approval from all Rulers can the Bill be presented before the Council of Malay Rulers (Majlis Raja-Raja Melayu) and then be brought to Parliament.

To put it simply, although Act 355 is a Federal law (owing to the position of the Federal Territory), it directly involves the Syariah Court’s jurisdiction, which is under the authority of the Malay Rulers. Therefore, a private motion/proposal is preferred and the process is comparatively simpler without jeopardising the present process to the amendment of Act 355.

Furthermore, if the House of Representatives passed it to be further debated, this reflects the wish of the majority of the people and not only the wish of the Government.

The wish of the majority of the people will not in any way encroach upon the authority of the Malay Rulers because, regardless of the level of maximum punishment to be approved by the Parliament, the final amendments still lie within the power of the State Legislative Assemblies.

While the Government is subject to all these specific procedures, the Opposition, eg PAS, is free to put its private proposal before Parliament.

In fact, PAS has always been keen to present the Bill in Parliament and it is the privilege of the Government to expedite the process to make it happen.

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