Cease the hudud debate, says Bar Council

By Tarani Palani

Its implementation is impossible under our legal framework, according to council president Lim Chee Wee.

PETALING JAYA: The Malaysian Bar Council has called for a stop to all rhetoric concerning hudud, saying its implementation is impossible under Malaysia’s current legal system.

In a media statement issued today, Bar Council chairman Lim Chee Wee said debate on the matter had caused “confusion and divisions” among Malaysians.

In explaining how the hudud provisions could not fit into the current system, he said:

“The Federal Constitution only allows the states to enact laws creating offences by persons professing the religion of Islam against the precepts of Islam, and the respective punishments for such offences.

“With respect to the nature of such offences, these offences cannot include matters within the legislative powers of the federal government.

“Therefore, there can be no replication of any of the offences within any federal law with a different degree of punishment only for Muslims.”

He said federal law and its principles determined the scope of punishment for offences against the precepts of Islam.

He pointed out that the Syariah Courts (Criminal Jurisdiction) Act 1965 clearly listed the punishments to be meted out and that these existing punishments did not contain elements of hudud.

Quoting from the 1965 act, he said syariah courts could not exercise jurisdiction “in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding RM5,000 or with whipping exceeding six strokes or with any combination thereof”.

He also quoted from the Ninth Schedule of the Federal Constitution, which places “criminal law and procedure, internal security and public order” under the federal list.

Hudud mainly concerns penal laws. It would therefore fall under federal jurisdiction, not the state, Lim said.

He referred to the 1988 case of Che Omar bin Che Soh v Public Prosecutor, where the Supreme Court held that “laws in Malaysia do not have to conform to Islamic principles” and that Malaysia was indeed a secular state.

“Taking this principle, if hudud were brought into the criminal justice system, it would result in the importation of Islamic penal laws into laws that are secular, which is wrong in law,” he said.

He also said that imposing hudud only on Muslims would go against the principal of equality that Article 8 of the Federal Constitution refers to.

“A Muslim person would also be exposed to two separate prosecutions or convictions: one under hudud and one under the Penal Code,” he said, noting that Article 7 (2) of the Federal Constitution prohibits repeated trials.

“The Malaysian Bar calls upon all parties to uphold the Federal Constitution as the supreme law of the land and to cease all rhetoric regarding the implementation of hudud, which has inevitably caused confusion and divisions within society,” he added.

Source : FMT