PETALING JAYA: Legal experts are divided as to whether Kelantan is ready to implement hudud.
Some claim Kelantan may not be ready to enforce hudud, even if PAS’ Private Members’ Bills are passed in Parliament paving the way for its enforcement.
They say hudud breaches Article 8 of the Federal Constitution, leading to inequality between Muslims and non-Muslims in the state.
Lawyer Akbardin Abdul Kader said Kelantan may not be able to implement hudud because of the heavy requirements it demands.
“They may be rushing into this. There is a heavy burden on the state to establish any of the seven key offences under hudud.
“It is a monumental task to come up with the evidence required by the law to establish that a person has committed an offence.
“The philosophy behind hudud is prevention and more to serve as a deterrent, not so much on retribution,” he said.
He did not think the implementation of hudud would be unfair to Muslims in the state.
“To drive home the charge itself would be an uphill task – it would be surprising if they can establish even one case.
“Take theft, under the Islamic law, they would have to check the accused’s background. If he is poor, he would be cleared of the offence. He cannot be punished,” he said.
Universiti Malaya law lecturer Dr Azmi Sharom said Article 8 guarantees equality regardless of religion.
While the Constitution allows inequality in specific instances, he said, there is no provision that allows different criminal laws for people based on their religion.
“If Parliament allows it, Muslims in Kelantan will be treated differently from the non-Muslims in the state and differently from Muslims in other states,” he said.
However, lawyer Haniff Khatri is convinced Kelantan is ready to roll out hudud.
“Non-Muslims will not be affected. If a non-Muslim and a Muslim are caught in close proximity, only the Muslim can be penalised.
“If the police wrongly detain the non-Muslim, the individual can take the police to court,” he said.
Despite the Kelantan Legislature passing the amendments to the Syariah Criminal Code II 1993 yesterday, some lawyers argue PAS still cannot implement hudud.
“The Syariah Courts (Criminal Jurisdiction) Act 1965 limits their jurisdiction,” said lawyer Syahredzan Johan.
“Currently, the Act provides that the Syariah Court’s jurisdiction in meting out punishments for Syariah offences is imprisonment for a term not exceeding three years or any fine not exceeding RM5,000 or whipping not exceeding six strokes or any combination thereof.
“They have no power for example to amputate or impose death penalty to offenders under hudud.”
To implement hudud law, Kelantan needs to amend the Act in Parliament.
“Of course, the argument still stands that even if the amendment is passed, the hudud enactment can still be challenged on the ground that it is unconstitutional as it is inconsistent with Article 8,” said Syahredzan.
He added that if Parliament passed the amendment to the Act, the jurisdiction for all Syariah Courts in the Federation would be increased.
“I also worry whether the Kelantan government has the personnel and expertise to carry out all these punishments. For example, who will amputate? Who will stone to death? Where will the crucifixion be carried out?”
