Kelantan’s hudud unlawful, says former CJ

(Malay Mail Online) – The amended Kelantan Shariah Criminal Code 1993 tabled on March 18 is unlawful as the state government did not obtain parliamentary approval to draft the enactment, former Chief Justice Tun Abdul Hamid Mohamad asserted today.

Abdul Hamid contended that Kelantan did not have the jurisdiction to draft such laws as it breached state powers as outlined in the Federal Constitution.

“The question is can the state government draft the law without first getting parliamentary approval? In my view it does not.

“When the state law department drafted the bill, it had no legal powers to do so. So how can they make the law? Only when Parliament approves of it,” he said when presenting his paper work on the Kelantan hudud Bill at a forum on the topic here.

The former CJ added that even if Parliament did approve the Bill later, it will not make the Shariah enactment legal as it was drafted by a body that has no jurisdiction to do so.

He also echoed the arguments raised by legal experts that it would be impossible for Parliament to approve the hudud bill as its provisions for criminal punishment overlaps those listed in federal laws.

“Even if Parliament approves of it, the criminal offences listed (under the hudud Bill) are still within the jurisdiction of federal power and falls under the purview of the civil courts and not under State List because Clause 9 of the Bill was not amended to make the hudud punishments as part of the State List,” he said.

Abdul Hamid said hypothetically, one of the options Kelantan now has is to seek Parliament’s approval to amend the Shariah Courts (Jurisdiction) Enactment 1995 to widen the Shariah Courts’ power to include some of the hudud offences.

Since Islamic matters fall under state powers, Abdul Hamid said it was possible to try and widen the Shariah courts’ existing powers to mete out hudud punishments for offences committed by Muslims like alcohol consumption, adultery or false accusation of adultery.

He said hudud punishments for theft and highway robbery, however, will remain under federal jurisdiction as they require amendments to Article 76 of the Federal Constitution, which needs two-third’s parliamentary approval.

Another option, Abdul Hamid said, is that Kelantan could try and push for hudud punishments for criminal offences that are listed under federal jurisdiction to be incorporated into the Penal Code.

“This requires only a simple majority. This is a criminal civil law that is applied on both Muslims and non-Muslims. If there is a need for Shariah judges to try these offences then it can appoint Shariah Court judges,” he said.

But despite such options, Abdul Hamid argued that it would still be difficult for Kelantan to realise its hudud ambition due to legal complications.

“Whether it is the first choice or second, it would create legal problems that was never there before,” he said.

The former chief justice then said Kelantan should not fault the Constitution for its inability to implement hudud as the state government itself was unaware that it had acted beyond its jurisdiction when it drafted the Shariah Criminal Code II 1993.

He also said that he was of the view that should Kelantan insist on pushing through hudud, the matter would have to be taken to court.

“And this falls under the civil court’s jurisdiction as it involves matters pertaining to the Constitution”.

On March 19, PAS-ruled Kelantan passed key amendments to its Shariah Criminal Code II 1993 in a move to enable the eventual implementation of hudud in the Malay-majority east coast state.

The day before, PAS president Datuk Seri Abdul Hadi Awang served notice to Parliament on a proposed Bill to amend federal laws to allow hudud’s implementation in Kelantan but BN’s law minister Datuk Nancy Shukri said it may not make it into the order paper for the current session as there are many others on the schedule.