With no clear indication as to where Hadi’s Bill is heading, retired judge Datuk Mohd Hishamudin Yunus says if Parliament were to pass the Bill, it would be abdicating its constitutional responsibility.
A RETIRED judge, who has served in both the civil Court of Appeal and the Syariah Court of Appeal, sees the Private Member’s Bill tabled last month by PAS president Datuk Seri Abdul Hadi Awang as a “blank cheque” to the state legislatures.
If the Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016 were passed, says Datuk Mohd Hishamudin Yunus (pic), state legislatures “now may create any offence as they deem fit, and may prescribe any form of sentence, however severe or harsh, as they deem fit (as long as it is not the death penalty)”.
After 42 years as a judge and officer in Malaysia’s Judicial and Legal Service, Mohd Hishamudin retired in September last year and, a month later, joined G25, which is a group of senior Muslims working on “getting the practice of Islam in Malaysia to be in line with the Federal Constitution”.
Within the group he advises on issues relating to the law and the Constitution, and helps draft public statements on these issues. But in this interview with the Sunday Star, he stresses that he is speaking about what is now known as “Hadi’s Bill” in his personal capacity.
The former deputy parliamentary draftsman says that during his five years in the drafting division of the Attorney-General’s Chambers, no Private Member’s Bill ever received the Government’s support, let alone one brought forward by an opposition Member of Parliament.
So it was “not only unprecedented but also highly unusual” for a minister (Datuk Seri Azalina Othman Said of the Prime Minister’s Department) to table a motion on the afternoon of May 26 to suspend government business in the Dewan Rakyat and give priority to Hadi’s Bill which was last on the list.
Kelantan had already passed the Syariah Criminal Code II (1993) Enactment 2015, prescribing hudud punishments for adultery, murder, theft, robbery, sodomy, consumption of liquor and apostasy. But the existing Act 355 doesn’t allow the Syariah Court to impose PAS’ hudud punishments, Mohd Hishamudin points out, which was why Hadi came up with the Bill.
The former Selangor legal adviser sees the Bill as unconstitutional.
“If Parliament were to pass this Bill, it is tantamount to the august House abdicating its constitutional responsibility to exercise oversight and control over state legislatures in the creation of offences and in prescribing sentences,” he warns.
“Parliament would be going against the spirit and intention of the Federal Constitution.”
Criminal law is a federal matter and not a state matter, he says.
“Only Parliament can legislate and create offences that are considered criminal in nature,” he says.
In fact, under Item 1 of the State List in the Constitution, Parliament is expected to make laws to specify the offences over which the Syariah Court has jurisdiction, he adds. It states that the Syariah Court “shall not have jurisdiction in respect of offences except in so far as conferred by federal law”.
Mohd Hishamudin sees the purpose of this provision “is for Parliament to have oversight and control over offences, including the nature of punishments, created by state enactments, so that the state legislatures do not have a free hand to create offences or to prescribe sentences”.
If passed, the Bill would affect personal liberty and equality, he stresses. The state of Kelantan appears to believe – wrongly, according to the former judge – that the new Act would give it the power to enforce the Kelantan hudud Enactment of 2015 (with modifications since the death penalty is not permitted by Hadi’s Bill).
Under the Constitution, Article 5 provides that “No person shall be deprived of his life or personal liberty save in accordance with law”, he notes.
“The (PAS’) hudud law with its extreme harshness was not contemplated by our forefathers and the framers of the Federal Constitution. They envisaged a moderate form of Islam as it existed then in the Malay states and as it exists till today,” he says.
Hadi’s Bill and the Kelantan hudud Enactment would also contravene Article 8’s equality provision because, for example, a Muslim who committed theft would be subject to both the Penal Code (which provides for fines and imprisonment) and hudud (which provides for amputation of the hand) whereas a non-Muslim who committed a similar offence would only be subject to the Penal Code.
And if Kelantan, disregarding the constitutional constraints, were to enforce PAS’ hudud, “Muslims in Kelantan will suffer the harsh punishments like the amputation of hands and feet and excessive whippings.”
That would be the scenario, Mohd Hishamudin predicts, until someone takes Kelantan to court to challenge the validity of the new Act and the Kelantan hudud Enactment, invoking Article 5 of the Constitution on personal liberty and Article 8 on equality before the law.