Syariah amendments constitutional, says former judge

  • Nation
  • Thursday, 16 Feb 2017

Mohamad Ariff speaking at a lecture on the legality of the proposed amendments to the Syariah Courts (Criminal Jurisdiction) Act (Act 355).

PETALING JAYA: Amendments to the Syariah Courts (Criminal Jurisdiction) Act (Act 355) are constitutional, but the proposed upper limits of its punishments are too high, warns retired Court of Appeal judge Datuk Mohamad Ariff Md Yusof.

He said attempting to set higher punishments through the Syariah courts would destroy the precepts that these courts were of limited power.

"Can it be done? Yes. Should it be done? No, I believe the upper limits are simply too high," he said during a lecture on the legality of the proposed amendments to the Syariah Courts (Criminal Jurisdiction) Act (Act 355).

Presently, the Syariah Courts can impose punishments up to three years' prison, a fine of up to RM5000, and up to six strokes of the cane for offences committed by a Muslim.

The amendment to Act 355 sought to increase it to a maximum of 30 years' prison, fines up to RM100,000, and up to 100 strokes of the cane.

Mohamad Ariff said it is not a good idea to increase the punishment just because the civil courts had higher punishment limits.

He added the civil court's higher limits are due to its need to handle severe crimes like those under the Penal Code and to draw direct comparisons between the two courts was not a "ciku to ciku comparison".

Mohamad Ariff said the Bill would be constitutional if the crimes it addressed did not overlap with matters included in the Federal List, including murder, rape, robbery and theft.

He however criticised the initial motion tabled in Parliament by PAS president Datuk Seri Abdul Hadi Awang last May that sought to strengthen provisions in the Syariah law by giving unlimited powers to its courts.

"To me, that is unconstitutional. You cannot give a blank cheque to the state government. If there are any laws that contradict the Federal Constitution, it'll be rendered void, there's no other way to read Article 75," he said.

Article 75 of the Federal Constitution states that if any state law was inconsistent with a federal law, the federal law shall prevail and the state law shall, to the extent of the inconsistency, be rendered void.

The Bill is expected to be re-tabled when Parliament reconvenes next month. It was read out a second time in November last year to include several tweaks that Abdul Hadi read out for the first time in the previous meeting.



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