Amendment a non-issue

In 1984, the limit was increased to three years’ imprisonment, fine of RM5,000, six strokes or any combination thereof. The amendment was a non-issue. Most people did not know about it. Non-Muslims did not even care about it as it did not affect them.

Tun Abdul Hamid Mohamad, New Straits Times

To give a bit of background, the Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355) was legislated in 1965. The act provided that the Syariah Court’s jurisdiction “shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding six months or with any fine exceeding one thousand dollars or with both”. That was the limit of the jurisdiction of the Syariah Court. In brief: six months’ imprisonment, RM1,000 fine or both.

The act was amended in 1984 by the Muslim Courts (Criminal Jurisdiction) (Amendment) Act 1984 (Act A612). The amendment act provides that the Syariah Court’s jurisdiction “shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding RM5,000 or with whipping exceeding six strokes or with any combination thereof”. In brief, the limit was increased to three years’ imprisonment, fine of RM5,000, six strokes or any combination thereof.

The amendment was a non-issue.

Most people did not know about it. Non-Muslims did not even care about it as it did not affect them. Barisan Nasional (BN) members of parliament voted for it in unison.

Now, there is a move to amend Act 355 again. We have not seen the bill. Yet, the proposal had greatly been politicised, including the holding of a mammoth gathering (something that has never happened before), so much so that it has raised conflicting reactions that threaten to split Muslims among themselves and non-Muslims against Muslims.

That is what happens when a simple legal matter is politicised. The law had been there for half a century.

Most people, including politicians (except, maybe, those in Pas), did not even know about it, or if they knew, did not care about it as it did not affect them, the non-Muslims.

As I have said, I have not seen the bill. However, I assume that when the bill is finalised by the Attorney-General’s Chambers, it will be constitutional and the amendment is nothing more than to increase in the jurisdiction of the Syariah Court. This article is written on that assumption.

Act 355 is a law that limits the jurisdiction of the Syariah Court. The proposed amendment is to increase it. It had been done before. Indeed, amendment of law to increase the jurisdiction of the courts, especially the civil court, is a common occurrence.

Usually, the proposal comes from the judiciary. It was never politicised nor did it become a political issue.

What makes it different this time? In one word, “politics”. First, the proposer is an opposition political party, Pas. Pas has survived and grown mainly on hudud. It is the best asset Pas has. It does not cost Pas anything. It does not decrease in amount, value or importance. It brings votes. Pas knows that it cannot be implemented due to constitutional and legal constraints.

In 1993, the Pas-controlled Kelantan State Legislative Assembly, mainly for political reasons, passed the Syariah Criminal Code (II) Enactment 1993 (Kelantan), containing, inter alia, criminal law offences under the federal jurisdiction. The enactment is unconstitutional for that reason besides infringing Act 355.

It lay dormant for 20 years. Then, Brunei gazetted its Syariah Penal Code Order 2013 (the Order) with the view, in brief, to introduce hudud and qisas in the country. (Until today, the part on hudud had not been brought into force yet.) That woke Pas up. It then dug up its old enactment and began to think of how to implement it. To cut the story short, it decided to move a private bill in Parliament to amend Act 355.

DAP, playing to the non-Muslim gallery, especially Chinese, objected to it. MCA and Gerakan, not wanting to be left behind, also for political reasons, followed suit. Pas beat the religious drum louder and louder. A simple legal matter has become a national political issue.

Putting aside the emotions and the political considerations, what is the effect of the amendment, really? It permits the State Legislative Assembly (SLA) to make law to increase the jurisdiction of the Syariah Court in the respective states, if the state government wants to.

The state government may decide not to increase the jurisdiction of the Syariah Court, in which case, the existing limit remains. It is up to the state government, through the SLA, to take advantage of the amendment, if it wants to. So, even if the amendment is passed by Parliament, DAP- led Penang may just do nothing and the jurisdiction of the Syariah Court in the state will remain the same.

In Part 2 tomorrow — Frequently asked questions on Amendment 355

Tun Abdul Hamid Mohamad is former chief justice of Malaysia.