M'sian Bar: Hadi’s Bill all about hudud punishments

KUALA LUMPUR - Despite repeated denials by PAS and Umno leaders, the Malaysian Bar said today that the Shariah Bill by Datuk Seri Abdul Hadi Awang would effectively empower the Shariah Courts to impose all punishments other than the death penalty under hudud law.

In a statement, Bar president Steven Thiru criticised those claiming the Bill does not touch on hudud offences, also giving his reasons for saying so.

He noted that the Bill seeks to introduce a new Section 2A into the Syariah Court (Criminal Jurisdiction) Act 1965 or Act 355 to increase the Shariah Court’s power to pass sentences.

“The proposed Section 2A removes the restriction on punishment for offences against the precepts of Islam that the Shariah Courts can currently impose: imprisonment not exceeding a term of three years, a fine not exceeding five thousand ringgit, whipping not exceeding six strokes, or any combination of these punishments (which has come to be known as the “3-6-5 provisions”),” Steven said.

“No sentence of death can be imposed under the new Section 2A, but the amendment would appear to confer Shariah Courts with unlimited power to impose all other hudud punishments,” he added.

Hudud offences include offences like zina (adultery), qazaf (false accusation of committing zina), syrub (alcohol consumption) and irtidad or riddah (apostasy) and according to the Kelantan Syariah Criminal Code (II) (1993) 2015 Enactment, punishment for these is whipping, ranging from 40 to 100 lashes.

“It is therefore rather disingenuous for some quarters to suggest that the Bill does not touch upon hudud offences in any manner,” Steven said.

He also said Article 8 of the Federal Constitution requires all legislative action to satisfy the test of proportionality, a requirement he said Section 2A may not satisfy.

Steven noted that the Bill also seeks to substitute the existing Section 2 in Act 355 with a new section that appears to widen the scope of the Shariah Court’s existing criminal jurisdiction, which is currently limited to offences by Muslims against Islam.

Steven admitted that it was uncertain whether this was intended to confer the courts’ jurisdiction to state enactments like the Kelantan enactment, which prescribes hudud offences in its Section 5, but said it would still invite the question of the constitutionality of the proposed amendments to the Act.

“The proposed amended Section 2, however, does not abide by the irrefutable legal principle that legislative amendments concerning criminal offences must be clear and precise, and must comply with constitutional limitations on the jurisdiction of the courts,” the Bar president said.

Steven also urged all parties in the matter to adhere and uphold the Federal Constitution, and to refrain from “provocative rhetoric.”

“Let us not allow unfounded statements or dubious actions divide us, and distract or divert us from focusing on the challenges to the rule of law that remain extant,” he said.

PAS made significant strides in its ambition to implement hudud when its president Hadi was able to table his private member’s Bill in Parliament two weeks ago, courtesy of an Umno minister’s intervention.

Both PAS and Umno have since insisted that Hadi’s Bill is not hudud and only seeks to further empower the Shariah courts to deliver harsher sentences, but others have said it would pave the way for the Islamic penal code to exist in Malaysia.