Structural, legal issues in hudud’s way even if bill passed, say law experts

Despite passing hudud into law 22 years ago and reviving attempts now to have it enforced, Kelantan PAS cannot implement the Islamic penal code as legal and structural roadblocks are still in place, law experts said.

Even if Parliament were to take a vote on the matter, the structural framework and machinery for its enforcement is not there, such as the police, the hospitals and the prisons, to handle crimes and the punishments under the code, said constitutional law expert Dr Abdul Aziz Bari (pic, left).

Another lawyer, Norman Fernandez, said a whole slew of laws and the Federal Constitution itself would have to be amended to either allow federal agencies to enforce and carry out the punishments, or to create new bodies to implement the code.

Former Bar Council chairman Datuk Khutubul Zaman Bukhari argued that prosecutions of people caught under the code would be crippled if the perpetrators were to challenge the constitutionality of the law itself.

“There are many details that are missing from PAS’s plan and it seems like the party is doing this haphazardly. There are many problems in its implementation,” said Aziz.

PAS is trying to get parliamentary approval to enforce its version of hudud, which it first enacted in 1993 in Kelantan but could not enforce, and which the state's legislature amended again on March 19.

The Islamist party, which has ruled Kelantan for more than two decades, is trying to do this via a private member’s bill that seeks to amend the Shariah Courts (Criminal Jurisdiction) Act 1965.

The 1965 Act limits the scope of Shariah crimes punishable and PAS lawmakers have argued that it is necessary to amend it in order for Kelantan to enforce its own laws that deal with theft, murder and apostasy.

The code prescribes punishments for crucifixion, stoning, cutting off the limbs and caning for Muslims guilty of offences such as robbery, adultery, murder and consumption of alcohol.

The bill has divided the opposition pact Pakatan Rakyat while parties in the ruling Barisan Nasional, except for Umno, have announced that they will oppose it.

Structural issues

Fernandez said that the private member’s bill brought by PAS was not enough to enforce its hudud and qisas laws.

This is since the police and prisons, for instance, come under federal jurisdiction according to the Ninth Schedule of the Constitution, he said.

This is in the same provision which states that management of the criminal justice system is a federal power.

“There will be a conflict if the police and prisons are forced to investigate and deal with offences under the state’s jurisdiction,” said Fernandez, who has studied Shariah Law and its application in Indonesia and Pakistan.

The Indonesian province of Aceh for instance, where Shariah law is applied, has their own enforcement unit that is separate from the police force.

“It’s not just a matter of passing the private bill. You have to amend the Constitution,” said Fernandez.

Even Inspector-General of Police Tan Sri Khalid Abu Bakar cautioned that police would face difficulty in deciding which law to enforce if hudud were implemented.

"They must amend the Constitution first. If not, it will be like the child custody cases, where the police cannot carry out both court orders," he said yesterday, referring to children caught in civil marriages where one spouse then converts to Islam.

In recent custody cases of such children, police have refrained from enforcing separate orders by the civil court and the Shariah court which gave custody rights to the non-Muslim spouse and Muslim convert spouse, respectively.

"So the Constitution has to be dealt with first. The Penal Code will also have to be amended," Khalid had said.

Legal challenges

Even if PAS somehow gets the private member's bill through Parliament, it will be almost instantly challenged in court, Khutubul Zaman said.

“For example if they catch and try someone under hudud, that person can challenge that the code violates his rights under Article 8,” said Khutubul Zaman (pic, left), who was former Shariah Law committee chairman in the Bar Council.

Article 8 of the Constitution specifies that everyone is equal before the law. One criticism of PAS’s hudud is that it would only be used for Muslims.

Questions would then be raised on what to do with Muslims caught for hudud crimes while the law is being challenged at the Federal Court, he said.

Individuals could also challenge the constitutionality of the code and whether it breaches Article 4 and Article 75 of the Constitution.

Article 4 states that any law which is inconsistent with the Constitution is null and void. Article 75 states that if a state law conflicts with an existing federal law, then the federal law takes precedence.

Principle of equality

Aziz, however, believes that the law’s conflicts with the Constitution are not as serious as the loopholes and obstacles to it being applied effectively and justly.

For instance, PAS has not resolved the issue of selective prosecution and whether everyone including the Malay Rulers would be liable to be charged under the Kelantan enactment.

“This is something they have never answered because under hudud, everyone, citizens and rulers are supposed to be equal,” Aziz said.

Currently, state rulers who have been accused of crimes can only be prosecuted in a special court set up by the Malay Rulers Council.

“They cannot also guarantee that their friends or cronies will not be prosecuted,” said Aziz, adding that the independence of judges was still an issue in the eyes of the public.

Even the current Shariah court set up was inefficient, resulting in cases taking too long to be heard, Aziz added.

Just politics

PAS is unlikely to get a two-thirds majority from Parliament's 222 MPs as required in order to amend the Constitution, but it could push through an amendment to the 1965 Shariah Courts Act which only needs a simple majority.

“I believe the constitutional problems are not as serious as the practical problems," Aziz said.

“If you cannot even deal with corruption and can’t even understand issues such as equality before the law, how are you going to do this?

“If you cannot solve these issues then wouldn’t going ahead with hudud be a disservice to Islam?”

Meanwhile, Fernandez believes PAS’s hudud is a political ploy given the legal barricades that have to be surmounted or removed in order to get a law that is so state-specific and so contentious, off the ground.

“They will bring it to Parliament. Then, when it fails in Parliament, they will say Umno did not support it. And then, they can tell their supporters that they tried,” he said. – March 26, 2015.