Malaysian Bar: Kelantan’s hudud divides society

(The Star) – With the amendments to the Syariah Criminal Code II 1993 to be deliberated at the Kelantan state assembly, legal activists have spoken up in opposition to PAS’ bid to pave the way for hudud laws to be implemented statewide.

“It would not be helpful to national unity to create marked distinctions between Muslims and non-Muslims,” said Andrew Khoo, the Malaysian Bar Council’s Human Rights Committee chairperson.

Khoo questioned how one could support hudud law when it would divide society in a very marked way.

“A Muslim who has committed a crime would face a different set of punishments from a non-Muslim.

“This would then trigger calls for non-Muslims to come under Hudud law, which would trigger yet another form of unfairness as Hudud law would be imposed on non-adherents to Islam,” he said.

Khoo added that the amendments could affect efforts for national unity.

“This was never an issue with Syariah law because it concerned private matters of the family.

“When the Constitution was drafted it only talked about personal, private law. We are not talking about which law is more just or less just. I am talking about the fact that it is hard to have a dual-system of criminal law,” he added.

Similar views were shared by Lawyers for Liberty co-founder Eric Paulsen, who said that any attempt to introduce hudud law to Malaysia would be unconstitutional.

“Malaysia is a country founded on parliamentary democracy where the Federal Constitution, which is secular in nature, reigns supreme.

“Any attempt at amending the Constitution to introduce hudud would also be unconstitutional as that would violate the basic structure of the Constitution,” said Paulsen.

He pointed out that the Kelantan State Assembly does not have the jurisdiction to pass the amendments to be tabled on Wednesday, as under the Ninth Schedule of the Constitution, all civil and criminal laws fall under the jurisdiction of the federal government.

“It also violates the Syariah Courts (Criminal Jurisdiction) Act 1965 that restricted the jurisdiction to only offences punishable with imprisonment up to three years, fine up to RM5,000 or whipping up to six strokes,” said Paulsen.

He added that the amendments, if passed would be in breach of Article 8 of the Federal Constitution, which guarantees equality and non-discrimination, as hudud law would only apply to Muslims, while non-Muslims would be subject to civil criminal law.

“Further, some offences under hudud are also offences under criminal law thus offending Article 7(2) of the Constitution that prohibits repeated trials or double jeopardy,” said Paulsen.

However, PAS leaders such as central committee member Khalid Samad disagree, saying that hudud law is important to the people of Kelantan.

He explained during a press conference at Parliament lobby on Tuesday that although to an outsider, the introduction of hudud might seem detached from national-level issues, it is an important matter to the people of Kelantan.

“We need to understand that the people of Kelantan are unique and Kelantanese politics is also unique,” he said adding Kelantanese are most qualified to make a decision on Hudud.

He added that as the party will only be amending the existing 1993 Enactment, there is no issue to run the final version of the amendment through DAP and PKR before it is presented to the state government on Wednesday.

In response to a survey that showed that the people of Kelantan put more importance on development and post-flood rehabilitation rather than Hudud, Khalid said that both issues are not mutually exclusive and can be carried out simultaneously.

Khalid brushed aside speculation of a split in Pakatan and said the amendment to an enactment should not be seen as something that can cause the coalition’s disintegration.

The amendments include the rights of non-Muslims under hudud. According to Khalid, the amendment stipulates that hudud is only applicable to Muslims. Before, non-Muslims were given an option to choose hudud or to be tried under conventional laws.

The party’s allies have yet to receive a response from PAS following a special briefing by PAS last Thursday.

“We are still waiting for the Kelantan government to get back to us after our meeting on Thursday with their feedback based on the outcome of that discussion,” said PKR secretary-general Rafizi Ramli told a press conference.

Rafizi said that while there were a few requests for amendments to be made, PKR was still waiting for a response from PAS, adding that if the amendment was presented on Wednesday, PKR would wait and see what was presented before responding accordingly.

“I am hoping that at the very least, out of respect for Patakan and the process and cooperation, they will come back to us before it is tabled because the decision of the Pakatan council last week was for them to come back to us based on the feedback that was given,” said Rafizi.