Hudud’s practical problems: The non-Muslim witness, state boundaries and the Constitution

by Boo Su-Lyn and Joseph Sipalan
The Malay Mail Online
MAY 4, 2014

KUALA LUMPUR, May 4 — Even if PAS wins Parliament’s nod for its hudud bid, lawyers say the Islamist party will face even greater hurdles when the controversial law is implemented in Kelantan.

They said not only does the Islamic penal code run contrary to the Federal Constitution, it would also have limited reach in that it could not prescribe punishment on criminals who flee the state’s borders.

To complicate things further, the Shariah Court cannot compel a non-Muslim witness to testify before it and cannot cite them for perjury or contempt of court as its jurisdiction only covers Muslims, they said.

“It’s unworkable because non-Muslims will not be subject to those provisions, which means your witnesses, your accomplices who are non-Muslims, will not appear in those cases,” Malaysian Bar president Christopher Leong told The Malay Mail Online.

“It’s non-compellable. I don’t have to answer your questions, let alone attend court,” he added.

PAS is attempting to enforce an Islamic penal code in Kelantan as early as next year, which comprises “hudud” and “qisas” (retribution) laws that cover offences like murder, causing hurt, rape, robbery and theft.

Leong also noted that according to the Federal Constitution, criminal law falls under federal jurisdiction.

Syarie lawyer Nizam Bashir said the Ninth Schedule of the Federal Constitution states that the Shariah court only has jurisdiction over “persons professing the religion of Islam”, and thus would need to be amended if Kelantan desired to allow the Islamic court to hear non-Muslims.

Kelantan Deputy Mentri Besar Datuk Mohd Amar Nik Abdullah said recently that cases involving Muslim perpetrators and non-Muslim victims would still go to the Shariah Court under the state’s Islamic criminal justice system.

“I find it repugnant for any rules relating to evidence that a person not subject to the control of the court can come to court, and the court can’t do anything if the person lies,” Nizam told The Malay Mail Online.

The syarie lawyer highlighted the recent controversial child custody disputes between non-Muslims and Muslim converts, where calls for the Shariah court to be given jurisdiction over such cases were problematic because the Islamic court could not hear non-Muslims.

He also pointed out that under an Islamic criminal justice system in Kelantan, a state-born resident who commits a crime in another state can only be arrested once they enter Kelantan.

“Keeping that in mind, pursuant to the 9th Schedule, every state has jurisdiction to enact legislation only within the confines of its state. In other words, it cannot enact an enactment with extraterritorial effect,” said Nizam.

Civil liberties lawyer Syahredzan Johan said that implementing Islamic criminal laws violated the Federal Constitution as Muslims in the country would be subjected to two legal systems.

“That in itself is inequality and is not in conformity with Article 8 of the Federal Constitution which guarantees equality,” Syahredzan told The Malay Mail Online.

“When it comes to criminal laws, a Muslim person is liable to suffer a more severe punishment for the same act compared to a non-Muslim,” he added.

Syahredzan cited an example where a pair ― a Muslim and non-Muslim ― commit theft together, but the Muslim is liable to lose his hand, while the non-Muslim may just receive a fine or a jail sentence.

“The issue of unconstitutionality arises in the implementation, and that is when it will be ripe for a constitutional challenge,” he said.

Constitutional lawyer Edmund Bon said an Islamic criminal justice system ― which mandates punishments like death by stoning, amputation, and 100 lashes ― violates Article 5 of the Federal Constitution that protects one’s freedom from torture.

“Article 5 of the Constitution encompasses the right to life. The right to life includes the right not to be subject to torture, inhumane or degrading treatment or punishment.

“We would be ready to challenge hudud laws under the constitution should it come into force,” he said.

Bon also pointed out that the Federal Constitution limits the Shariah court’s jurisdiction to family law, personal law and offences against the “precepts” of Islam for Muslims.

But hudud, the lawyer argued, was not envisaged to be part of the offences that violate Islamic precepts.

In 1993, the PAS state government passed the Kelantan Syariah Criminal Code Enactment II, allowing it to impose the strict Islamic penal code in the state. But the laws have not been implemented.

PAS is now looking for parliamentary approval to implement hudud. It plans to put forward two private members’ bills in Parliament. One seeks approval for unconventional punishments, some of which are for offences already covered in the Penal Code. The other seeks to empower Shariah courts to mete out the unconventional punishments.

According to the Shariah Courts (Criminal) Jurisdiction Act 1965, the Islamic court cannot sentence offenders to more than three years in jail or fine them more than RM5,000. It also cannot sentence offenders to be whipped more than six times.