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The hudud enactment is too important to be left to politicians, especially those who appear to be driven more by political expediency than by any overwhelming religious principles, says Jeyakumar Devaraj.

The Private Member’s Bill submitted by Abdul Hadi Awang, the president of Pas, appeared as the 24th item in the Dewan Rakyat Order Paper on 7 April 2015.

This Private Member’s Bill seeks to amend the Syariah Court (Criminal Jurisdiction Act) Act of 1965 by:

  • dropping the clause in the original Act that limits the maximum punishment that the Sharia Court can order. In the original Act, the maximum punishments were three years’ jail, RM5,000 fine and six lashes. No alternative maximum sentences are specified in this amendment bill.
  • inserting a new Section 2(A) which reads “In exercising the criminal jurisdiction under section 2, the Syariah Court may pass any sentence allowed by Islamic Law in respect of the offence mentioned.” (italics added)

The unaltered stem of Section 2 reads: “The Syariah Courts shall have jurisdiction over persons professing the religion of Islam and in respect of offences relating to any matter enumerated in item 1 of the State List in the Ninth Schedule of the Federal Constitution.”

Among the matters enumerated in item 1 of the State List of the Federal Constitution is: “The creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in regard to matters included in the Federal List”.

So what would happen if Hadi’s Bill is passed? (Though at this point in time that appears quite unlikely!)

The Kelantan Syariah Enactment of 1993 specifies the following as hudud offences:

Stealing
(sariqah)
[Clause 5-7]
Amputation of right hand at wrist level if certain conditions are met.
But this crime is listed in the Penal Code and therefore remains outside the jurisdiction of the Syariah court.
Robbery
(Hirabah)
Clause [8-9]
Punishment variable. If victim injured (amputation of a hand and a foot) victim killed (Death), etc
But this crime is listed in the Penal Code and therefore is outside the jurisdiction of the Syariah court.
Adultery
(Zina)
[Clause 10-11]
100 lashes if person never married plus jail for 1 year.
Death by stoning if person married. (Rejam)
This is not a crime in the Federal List. Therefore it falls under the jurisdiction of the Syariah Court, and the prescribed sentences could be carried out if Hadi’s amendment is passed.
False accusation of Zina
[Clause 12-13]
80 lashes
This is not a crime in the Federal List. Therefore it falls under the jurisdiction of the Syariah Court, and the prescribed sentences could be carried out.
Consumption of alcohol
(syurb)
[Clause 22]
40 to 80 lashes
This is not a crime in the Federal List. Therefore it falls under the jurisdiction of the Syariah Court, and the prescribed sentences could be carried out.
Apostacy*
(Irtidad)
[Clause 23]
Death penalty if person refuses to recant.
 
This is not a crime in the Federal List. Therefore it falls under the jurisdiction of the Syariah Court, and the prescribed sentences could be carried out.
 

* 23 (1) Irtidad is any act done or any word uttered by a Muslim which according to Syariah law affects or is against the “aqidah” (belief) in Islamic religion.

(2) The acts or words which affect the aqidah are those which concern the fundamental aspects of Islamic religion such as matters pertaining to Rukun Islam, Rukun Iman and matters of halal and haram.

My understanding is that, if Hadi’s Private Member’s Bill is passed – and it will only require a simple majority to do so, then four out of the six hudud offences described in the Kelantan Hudud Enactment of 1993 can be punished as specified in that enactment (as in the table above).

As it turned out, the Bill didn’t make it to a first reading as Private Members Bills are only dealt with after “completion of government matters” and that had not been completed.

But the next session of Parliament commences in six weeks. Will Pas keep harping on the fact that the ball is now at the feet of the federal government (ie Umno) and that they are stalling the further passage of the bill, thus, according to Pas, proving that they are not serious regarding the Islamic agenda? How will Umno respond to such political brinkmanship on the part of Pas?

The majority of Pas MPs in Parliament, I believe, are not keen that this Hudud Bill be brought to the floor.

Several of them feel that it should not have been brought to Parliament in the first place.

Others feel that it had to be done, but that is as far as it should be pushed for now. One Pas MP from Kelantan who is in this second group confided that he would be seriously worried if this Bill were to be passed as he felt “its implementation would be a mess”. In his opinion the Sharia courts in Kelantan have not yet developed to the stage where they can administer justice as they should.

But there are a minority of Pas MPs who feel that the hudud can be implemented right away.

The appearance of Hadi’s Bill in the Order Paper has stressed both coalitions. The Pakatan Rakyat came close to splitting, while many of the non-Muslim members of the BN are disturbed, especially those from East Malaysia.

The hudud enactment is too important to be left to politicians, especially to this bunch who, to me, appear to be driven more by political expediency than by any overwhelming religious principles.

We need sane and mature views from both Muslims and non-Muslims to help Malaysian society navigate this controversy without too much acrimony.

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