PETALING JAYA: PAS’ amendment Bill, if passed, will allow Syariah law to encroach on the civil criminal justice system.
This will result in unequal punishments for Muslims and non-Muslims, triggering a constitutional issue, said a prominent legal expert.
Emeritus Prof Datuk Dr Shad Saleem Faruqi said the guarantee of equality before the law under Article 8 of the Constitution would be challenged as a Muslim and a non-Muslim charged for the same crime would be subjected to different punishments.
Dr Shad acknowledged that while unequal treatment is permissible in the matter of personal laws under Article 8 (5), the hudud laws in question here do not fall under the same category as they were criminal laws.
“Theft, rape murder, and incest are not personal laws so I think this law will be unconstitutional under Article 8.
“So even if Parliament passes it, it would still raise constitutional issues. Therefore the law can still be challenged under the Constitution,” he said.
According to Dr Shad, the Bill is seeking to amend the Syariah Courts (Criminal Jurisdiction) Act to allow greater punishments in reference to the Syariah Criminal Enactment Code of 1993 through which the Kelantan government had sought to impose hudud penalties.
Dr Shad said that even if the law was passed by Parliament, it does not mean that the Syariah law will supersede the Federal Constitution.
“Nothing can supersede the Federal Constitution. The Federal Constitution itself allows for some exceptions, you have to come within those exceptions but otherwise the Constitution must prevail,” said Dr Shad.
He said questions of constitutionality will never cease even if the Private Members Bill on hudud is passed in Parliament.
Meanwhile, Dr Shad said that the Conference of Rulers could still object to the amendment after Parliament passes it while the law could also be challenged as being unconstitutional at the Federal Court.
In what is called cooperative federalism, Dr Shad said that it is also entirely possible for the Federal Government to transfer some of its powers to the Kelantan government if it was in support of hudud law.
“There is another procedure under Article 76(A) whereby the Federal Government can transfer some of its powers to the state government.
“But even if that is so, constitutional issues cannot be surpassed,” he said.
According to Dr Shad, the Bill would require 112 votes to be passed and not a two-thirds majority as it is not an amendment to the Constitution itself but an amendment to an Act of Parliament.