The Federal Constitution and hudud

All matters relating to criminal law and procedure is vested in the federal government. This includes the creation of criminal offences. 

Gurdial Singh Nijar , The Sun

THE power to make laws in Malaysia is distributed between the federal and state legislatures. The subject matters for which they can make laws is prescribed by the Federal Constitution. These are listed in a schedule to the Constitution. There are three lists: list 1 sets out matters within the exclusive jurisdiction of the federal Parliament; list 2 states matters for which only the state legislature can make laws. There is a third list which covers matters where both the state and federal legislatures can make laws.

Power of states to enact hudud laws

The first question that arises is whether the states are empowered to create hudud offences and provide for their punishment. For this we need to look at the lists.

All matters relating to criminal law and procedure is vested in the federal government. This includes the creation of criminal offences. These matters are included in the Federal Constitution, 9th Schedule, List I, item 4. Indeed states are explicitly prohibited from dealing with the creation and punishment of offences by persons professing Islam against precepts of that religion: Federal Constitution, 9th Schedule, List II, item 1. This makes clear that matters relating to criminal law and procedure are off limits to state legislatures.

The upshot is that states cannot enact such laws. Hence the Kelantan Syariah Criminal Code Enactment of 1993 and the Terengganu Syariah Criminal Enactment of 2003 which purport to create and punish hudud offences are clearly unconstitutional.

Power of Parliament to enact hudud laws

The second question that arises is whether the federal government can enact a law which will create such hudud offences and provide for their punishment?

The Federal Constitution states that the Constitution is the supreme law of the land. It provides the framework within which all other laws are enacted. Any law enacted after Merdeka Day that runs counter to the provisions of the Constitution will have no effect. It will be declared as “unconstitutional”. This is made clear by Article 4 of the Constitution which states categorically that “any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”. So although Parliament can make laws, the validity of any such law will be assessed by reference to the provisions of the Constitution. If there is any challenge, the court has a duty to determine whether the act passed by Parliament (say, creating hudud offences) is consistent with the Constitution. If it is not, then that law is unconstitutional and void.

Our constitution is founded on the Westminster model. It has a fundamental construct. It provides for a democratic make-up and the enjoyment of fundamental liberties or rights. In this context, there are many parts of the Constitution that make references to “law”: “save in accordance with law” (Article 5); “in accordance with law” (Article 13); “equal protection of the law” (Article 8), and such like. The reference to “law” in the constitution refers to a system of law which incorporates the fundamental notions of a democracy and the values it enshrines as obtained in England on Merdeka Day. So also would it incorporate fundamental rules that formed part and parcel of the common law of England that existed at the time when the Constitution came into force. The Constitution makes this clear when it states that law includes also “the common law in so far as it is in operation in the Federation …” (Article 162). The rationale for this was provided by the Privy Council in a case dealing with almost identical provisions of the Singapore Constitution, in these terms:

“It would have been taken for granted by the makers of the Constitution that the “law” to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules. If it were otherwise it would be misuse of language to speak of law as something which affords “protection” for the individual in the enjoyment of his fundamental liberties, and the purported entrenchment (by Article 5) of Articles 9(1) and 12(1) would be little better than a mockery”: Ong Ah Chuan v PP (1981) 1 Malayan Law Journal 64.

What this implies is that you cannot violate the fundamental basis and values upon which the Constitution was constructed. Parliament, for example, cannot exercise its law-making powers to put a permanent end to Parliament; nor can it abolish the rule of law; nor can it disenfranchise its citizenry from voting. This would fly in the face of the values that have been enshrined in the Constitution on Merdeka Day. This was reinforced by the 1970 King’s declaration of the national ideology (the Rukun Negara) – which entrenched the cardinal twin principles of the rule of law within a democratic constitution.

On Merdeka Day, there was in existence a complete criminal justice system – replete with written statutory laws and supplemented by the common law. This has been developed and enriched over the years by amendments and court decisions. All this is perfectly consonant with the development of the system of laws that existed as at Merdeka Day when the Constitution came into force. It is within the power of Parliament or the courts to traverse new areas which were not thought about at the time the Constitution was enacted. Similarly there would not be any justification to perpetuate archaic rules relating to the administration of justice. On this basis, technical rules of evidence and permitted modes of proof of facts have been routinely enacted by Parliament or clarified by the courts; and jurisdictions extended for example to deal with new areas such as Islamic banking; so too personal laws – with regard to marriage and divorce and such like – have always been recognised in the jurisprudence of functioning democracies.

The crunch comes when the proposed new law violates the fundamental system of laws that existed and was bequeathed to, and accepted by us on our day of independence. The litmus test would be whether hudud involves precepts that would overhaul the criminal justice system of laws as at Merdeka Day? If it is indeed antithetical to this established system then Article 4 of the Constitution renders it unconstitutional.

On a cautionary note: to abandon the anchor, the chart and the compass of the Constitution – to paraphrase constitutional expert, Prof Shad Faruqi – may well set us adrift on a perilous journey into the unknown and the unpredictable. Is there not cause to pause and ponder?

Gurdial Singh Nijar is a professor with the Law Faculty, Universiti Malaya. Comments: [email protected]