Implementing hudud would be unconstitutional
Lawyers for Liberty views with extreme concern PAS’ attempt to table a private member’s bill in Parliament in order to implement the Sharia Criminal Code (II) Enactment 1993, or hudud, in Kelantan.
This is an extremely irresponsible act of political grandstanding, calculated to burnish PAS’ Islamic credentials, to try to out-Islamise or arm-twist UMNO or Muslim parliamentarians into supporting hudud, without considering the best interest of Malaysia and its people.
Harsh punishments like stoning to death (with stones of medium size), crucifixion and amputation of limbs are out of place in this day and age or in any modern and democratic society as they constitute torture, cruel and unusual punishment and would violate the right to life and the prohibition against torture.
Let us be clear, Malaysia is a country founded on parliamentary democracy where the Federal Constitution, which is secular in nature, reigns supreme. Any attempt to introduce hudud would be unconstitutional as the hudud derives its ultimate authority from the Quran and therefore only possible under a theocracy.
In order for hudud to be implemented, the Constitution and its legislature, executive and judiciary, all other structures and institutions that make up Malaysia would need to be reconstituted as being based on Islam and the Quran, and that would not be possible, short of an Islamic revolution as in Iran or Afghanistan. Any attempt at amending the Constitution to introduce hudud would also be unconstitutional as that would violate the basic structure of the Constitution.
The Kelantan hudud enactment was a political stunt in the first place since the Kelantan State Assembly does not have jurisdiction to pass such law 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 Sharia 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.
Hudud would also be in serious breach of Article 8 of the Constitution that guarantees equality and non-discrimination as it would only apply to Muslims while non-Muslims would be subjected to the existing 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.
Needless to say, hudud is not a magic, cure-all panacea to all the wrongs in society; see for example the implementation of hudud in Afghanistan, Pakistan, Somalia, Sudan and northern Nigeria that has not resolved anything. Various Islamic scholars have also questioned whether implementing hudud in modern times is not only unrealistic but is most likely to produce the opposite result of Islamic justice and fair play.
We call upon PAS to withdraw the private member’s bill and reassess its position on hudud as according to various Islamic scholars, there are realities that must be taken into account before hudud can be considered in modern times: change of environment and temptation; divide between rich and powerful and poor and weak; existence of corruption, abuse of power, incompetence; selective implementation – i.e. the total absence of the necessary context and conditions for the implementation of hudud, all raises doubt and therefore hudud ought not be implemented.
Lawyers for Liberty
24 April 2014
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