Hudud’s practical problems: The non-Muslim witness, state boundaries and the Constitution

(The Malay Mail) – Even if PAS wins Parliament’s nod for its hudud bid, lawyers say the Islamist party will face even greater hurdles when the controversial law is implemented in Kelantan.

They said not only does the Islamic penal code run contrary to the Federal Constitution, it would also have limited reach in that it could not prescribe punishment on criminals who flee the state’s borders.

To complicate things further, the Shariah Court cannot compel a non-Muslim witness to testify before it and cannot cite them for perjury or contempt of court as its jurisdiction only covers Muslims, they said.

“It’s unworkable because non-Muslims will not be subject to those provisions, which means your witnesses, your accomplices who are non-Muslims, will not appear in those cases,” Malaysian Bar president Christopher Leong told The Malay Mail Online.

“It’s non-compellable. I don’t have to answer your questions, let alone attend court,” he added.

PAS is attempting to enforce an Islamic penal code in Kelantan as early as next year, which comprises “hudud” and “qisas” (retribution) laws that cover offences like murder, causing hurt, rape, robbery and theft.

Leong also noted that according to the Federal Constitution, criminal law falls under federal jurisdiction.

Syarie lawyer Nizam Bashir said the Ninth Schedule of the Federal Constitution states that the Shariah court only has jurisdiction over “persons professing the religion of Islam”, and thus would need to be amended if Kelantan desired to allow the Islamic court to hear non-Muslims.

Kelantan Deputy Mentri Besar Datuk Mohd Amar Nik Abdullah said recently that cases involving Muslim perpetrators and non-Muslim victims would still go to the Shariah Court under the state’s Islamic criminal justice system.