Why hudud is unconstitutional and impractical

– Low Teck Kuan
The Malaysian Insider
April 26, 2014

PAS has recently been extremely persistent in pushing for the implementation of hudud in Kelantan. Despite numerous warnings by other political parties against their agenda, PAS seems hell bent on introducing a Private Members Bill in Parliament to further their own political agenda.

However, here lies the big question: Is it possible to implement one set of criminal law (hudud) in one state and have the rest of other states and Federal Territories obeying another set of criminal law?

Certainly no, because let’s be clear on this, you cannot have one set of law for one state on crime and another set of criminal law for other states. Not only it is impractical, it also seeks to disrupt the basic structure and relationship between the Federal and the states which was laid down by our founding father Tunku Abdul Rahman. It is also unconstitutional as PAS’s constant attempt at introducing hudud also seeks usurp federal powers at the same time.

Part VI of the Federal Constitution defines the relations between Federal and the states, where therein lies Article 73 to 79 of the Federal Constitution which laid down Parliament’s (Federal level) exclusive power to make law. Specifically, Article 74 (1) states that “…Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List…” while Article 74(2) states that “…the Legislature of a State may make laws with respect to any of the matters enumerated in the State List…”

And if we look at the Federal list which is the First fist set out in the ninth Schedule of the Federal Constitution, internal security (including police, criminal investigation, public order etc.) clearly forms part of the Federal’s exclusive power and responsibility. Any attempt by any states to usurp this power is therefore unconstitutional. Even Article 75 demonstrates Federal’s superiority over all other states, where it is stated that “if any State law is inconsistent with a Federal law, the Federal law shall prevail and the State law shall, to the extent of the inconsistency, be void”. Supremacy of the Federal Constitution as stated under Articles 4(1) also provides for the prevalence of the Federal Constitution against any conflicting laws passed by Parliament.

Crime is and has always been under the Federal’s jurisdiction, not the state. You cannot have one criminal court sentencing criminals to stoning or amputation with the rest of the country’s criminals committing the same offence being jailed. Even the police force will be acting separately and confused. It’s akin to Kelantan seceding, running and acting on its own. It also creates a dangerous precedent where any one state could at any time decide and choose to act on Federal matters on its own which will defeat the very purpose of forming a federation in the first place.

In addition, implementation of hudud is clearly unconstitutional as it seeks to cover crimes that are already well covered in the Penal Code. Although PAS legal bureau chairperson Mohamed Hanipa Maidin disagreed and stated that two criminal justice systems namely civil law and syariah law, have existed “since the time the federal constitution was created” and therefore is constitutional. However, I beg to differ as Syariah offences tried in the Syariah Court are only permitted on the premise that the State law stipulating Syariah offences is not in conflict with the Penal Code. Syariah Court only has jurisdictions over Islamic criminal offenses that are not covered by Federal law.

Common crimes, such as theft, murder, rape and any other offences which are already covered by the Penal Code are obviously beyond the state’s reach. By attempting to introduce hudud which has the effects of replacing provisions in the Penal Code, it is essentially in conflict of it and thereby unconstitutional. A good case to note here is the case of Che Omar bin Che Soh v. Public Prosecutor [1988] 2 M.L.J. 55, where the Court held that although Islam is the religion of the federation, it is not the basic law of the land and Article 3 (on Islam) does not impose any limit on Parliament to legislate. Therefore, Federal law takes precedence.

To implement hudud, PAS will need to significantly alter the Federal Constitution and redefine the basic structure of Federal-state relationship and responsibilities that has proven to be successful since the Merdeka days. Is it then advisable for us now to allow PAS to disrupt this core system and let Kelantan manage crime on their own with their own set of police force and criminal court? What happens then if there is a conflict between Federal and state institutions during execution of these two distinct laws? For example, what if a Kelantan Muslim commits a crime in other state? Or a non-Kelantan Muslim who commits a crime in Kelantan, but ran off to Penang? Which set of law applies? Should these people too be subjected to hudud law? Which police force will be responsible to nab them? Is the civil criminal court responsible to hear this crime? Or the Syariah criminal court?

Perhaps the more pressing question will be, does the Kelantan Muslims even want to be subjected to hudud where other Muslims living outside Kelantan would not? What if they still want to be governed by the existing Penal Code? Do they want to be treated differently from the rest?

Should Malaysian Muslims and non-Muslims alike who reside outside Kelantan start subjecting Kelantan Muslims to different treatments? Thereby discriminating them? Is it even just, fair and equitable to do so?

Have the wise ulamas in PAS ever considered these possible jurisdictional and enforcement problems? They could not even offer a constructive solution to the existing conflicts between two sets of law on marriage yet (Deepa’s case), what guarantees do we have that they can solve more complex situations as mentioned above? Especially when it comes to crime where hudud punishments and repercussions are more severe and long lasting?

The Federal Constitution was written by our founding father Tunku Abdul Rahman to be supreme. Since our early school days, we were taught to cite the Rukun Tetangga every Monday morning. One of the key Rukun was “Kedaulatan Undang-Undang”, which simply means the “Supremacy of the Constitution”. Tunku Abdul Rahman wanted us to remember that the Constitution is supreme and any attempt to alter its nature and structure must be defended against fervently.

By PAS seeking to introduce hudud, PAS is essentially trying to erode Federal’s exclusive power on crime and alter the system that our founding father had put in place which is clearly wrong. This is the one of the reasons why Karpal Singh fought against the implementation of Hudud, not because he was against Islam (and so do I, as I sincerely believe that Islam is a good religion) but that he was against any attempt by anyone to undermine the mechanism that defines and functions this country which is the Federal Constitution. In fact, throughout Karpal’s years of service as a Member of Parliament he had not opposed any other policies or laws which were formulated based on Islamic principles (such as Islamic banking).

Hence, in the good memory of Tunku Abdul Rahman and Karpal Singh, and in protecting the fundamentals and principles that were laid down by them, all Members of Parliament should oppose PAS’s attempt to introduce hudud (not on the basis that they are against Islam) but on the basis that there is a need to preserve Federal jurisdiction and protect the Federal Constitution. PAS should also reconsider its stance in seeking to push through Hudud in Kelantan due to its unconstitutionality and impracticality. Even if the Bill is passed on a simple majority in Parliament allowing Kelantan to adopt hudud, it will still be unconstitutional and can easily be challenged in the Court of law on grounds that it conflicts with the Penal Code.