Malaysian Bar: Kelantan hudud is unconstitutional and discriminatory

PETALING JAYA: The Syariah Criminal Code (II) (1993) 2015 Enactment which was passed by the Kelantan legislative assembly on Thursday is unconstitutional, discriminatory and divisive, said Malaysian Bar president Steven Thiru.

“The enactment goes against the secular structure of our Federal Constitution, which does not envisage a theocratic Islamic state, or a parallel criminal justice system where Muslims and non-Muslims are subjected to unequal treatment before the law,” said Steven in a statement on Friday.

He added that the drafters of the Constitution had never intended for there to be a dual criminal justice system, one at Federal level for non-Muslims, and another at the state level for Muslims.

“Criminal law and procedure, and the administration of justice, fall under the Federal List and are exclusively within the legislative competence of Parliament. It is therefore a subject matter solely within the legislative jurisdiction and power of Parliament,” Steven said.

He also pointed out that hudud was beyond the legislative capacity of state legislatures.

Article 7(2) of the Federal Constitution, Steven added, protects against repeated trials of accused persons in criminal offences.

“A Muslim person, who is tried and convicted for an offence under the Penal Code, may then be exposed to a second trial for the same offence and punished under hudud laws. This would be in breach of Article 7(2),” he said.

He further noted that under the Federal Constitution, equality was guaranteed for Muslims and non-Muslims under the law.

“It has been reported that the Syariah Criminal Code (II) (1993) 2015 Enactment passed by the Kelantan State Assembly would be applicable only to Muslims. This would offend Article 8(1), as it would result in divergent procedures, separate evidentiary rules and differing punishment being applicable to Muslims as compared to non-Muslims, in respect of criminal offences,” he said.