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Hudud in Malaysia:

The legal challenges


Syahredzan Johan
Advocate & Solicitor
Partner | RamRais & Partners

Syahredzan Johan | Partner, RamRais & Partners

Understanding hudud
In an Islamic state, there is no such thing as
separation between Church and State.
Islamic law Syariah includes marriages,
contracts, inheritance, administration etc. and
includes criminal sanctions.
Hudud is one part of Islamic criminal law
framework.
Generally 3 types of crimes and punishments:
Hudud (crimes where punishment is fixed)
Tazir (crimes where punishment is discreationary)
Qisas (crimes where punishment is retaliatory (aka eye for
an eye) and diyya (or diyat) (instead of retaliatory,
compensation may be paid)
Syahredzan Johan | Partner, RamRais & Partners

Understanding hudud
Hudud are the most serious of crimes because they are
crimes against God or against limits ordained by God.
Responsibility is on the State to punish these crimes.
Punishments are fixed, cannot be reduced if found
guilty.
Types of offences:

Theft
Highway robbery
Drinking alcohol
Zina illegal sexual intercourse
Qazhaf false accusation of zina
Apostasy (*opinions divided)
Syahredzan Johan | Partner, RamRais & Partners

Understanding hudud
In an Islamic state hudud is for all.
all Not just
Muslims (except for drinking alcohol and apostasy).
The burden of proof is very high. Not just beyond
reasonable doubt but beyond any doubt at all.
If there is any doubt, qadhi (judge) must not punish
for hudud principle of syubhah.
In such circumstances, commute down to tazir
where punishment is discretionary.
Principle of repentance taubat. Do not punish if
offender has repented.

Syahredzan Johan | Partner, RamRais & Partners

Hudud proposed by PAS


Only for Muslims.
Offences to be tried in the Syariah Courts.
From The Malay Mail Online report on 29 April
2014, Deputy MB of Kelantan 2 bills to be
introduced in Parliament:
The first bill is to seek approval to enact
punishment for crimes under the Penal Code.
Second bill is amend the Syariah Court Act to
give freedom for the state to enact punishment
higher than what it is now.

Syahredzan Johan | Partner, RamRais & Partners

Challenge (1) jurisdiction of


Syariah Courts
Federal Constitution, Ninth Schedule, List II:
States have jurisdiction to make laws for the organisation
and procedure of Syariah courts, which shall have jurisdiction
only over persons professing the religion of Islam and in
respect only of any of the matters included in this paragraph,
but shall not have jurisdiction in respect of offences except in
so far as conferred by federal law.

Syariah Courts (Criminal Jurisdiction) Act 1965:


1965:
The Syariah Courts duly constituted under any law in a State
and invested with jurisdiction over persons professing the
religion of Islam and in respect of any of the matters
enumerated in List II provided that such jurisdiction shall
not be exercised in respect of any offence punishable with
imprisonment for a term exceeding three years of with any fine
exceeding five thousand ringgit or with whipping exceeding six
strokes or with any combination thereof.
Syahredzan Johan | Partner, RamRais & Partners

Challenge (1) jurisdiction of


Syariah Courts
Although States have powers to create Syariah Courts,
jurisdiction is determined by Federal law.
The Syariah Courts (Criminal Jurisdiction) Act 1965
must be amended to allow for punishments such as
amputation and death.
This is the gist of one of the 2 Private Members Bill that
PAS wants to introduce.

Syahredzan Johan | Partner, RamRais & Partners

Challenge (2) jurisdiction of


States to enact criminal laws
Federal Constitution, Ninth Schedule, List I:
The Federation has jurisdiction to make laws for internal
security and civil and criminal law and procedure and the
administration of justice.

List II:
States have jurisdiction to make laws for the creation
and punishment of offences by persons professing the
religion of Islam against precepts of that religion, except in
regard to matters included in the Federal List

Syahredzan Johan | Partner, RamRais & Partners

Challenge (2) jurisdiction of


States to enact criminal laws
Criminal law is under Federal jurisdiction, falls under
Federal list.
States can create offences against precepts of
Islam, except in regard to matters under Federal
jurisdiction.
State law cannot create an offence what is already
a criminal offence under Federal law.
Most Syariah offences enacted by the States are
offences which have no equivalent under Federal
law.
Syahredzan Johan | Partner, RamRais & Partners

Challenge (2) jurisdiction of


States to enact criminal laws
Second bill that PAS wants to introduce is to get
Parliament to allow Kelantan to make criminal laws,
which is under Federal jurisdiction.
Federal Constitution,
Constitution, Article 76A
76A:
the power of Parliament to make laws with respect to a
matter enumerated in the Federal List includes power to
authorise the Legislatures of the States or any of them,
subject to such conditions or restrictions (if any) as
Parliament may impose, to make laws with respect to the
whole or any part of that matter..
Syahredzan Johan | Partner, RamRais & Partners

Challenge (2) jurisdiction of


States to enact criminal laws
However, power of Parliament under Article 76A
76A
would not be enough to empower the State to
enact criminal laws.
This is because criminal law under the Federal
List does not empower Parliament to make criminal
laws for Muslims only, but for all.
So because they have no power, they cannot give
Kelantan the power.
Syahredzan Johan | Partner, RamRais & Partners

Challenge (3) Article 8


Federal Constitution, Article 8:
All persons are equal before the law and entitled to the
equal protection of the law.
Except as expressly authorised by this Constitution, there
shall be no discrimination against citizens on the ground
only of religion, race, descent, place of birth or gender in
any law
This Article does not invalidate or prohibit - (a) any
provision regulating personal law.

Syahredzan Johan | Partner, RamRais & Partners

Challenge (3) Article 8


Implementing hudud in Kelantan would offend
Article 8 of the Federal Constitution.
There would be different criminal laws for Muslims
and non-Muslims in Kelantan what if a crime is
jointly committed by a Muslims and a non-Muslim?
There is also discrimination against Kelantan
Muslims vis--vis Muslims in other States.
Muslims in Kelantan will also be subjected to hudud
and the Penal Code.
These differentiations are not expressly authorised
by the Constitution nor can they be saved by the
personal law proviso in Article 8(5)(a).
Syahredzan Johan | Partner, RamRais & Partners

Challenge (4) Article 7


Federal Constitution, Article 7(2):
A person who has been acquitted or convicted of an
offence shall not be tried again for the same offence except
where the conviction or acquittal has been quashed and a
retrial ordered by a court superior to that by which he was
acquitted or convicted.

Hudud in Kelantan might also offend the rule against


double jeopardy.
Person who tried under one set of laws might be tried
under another set of laws.
Syahredzan Johan | Partner, RamRais & Partners

Challenge (5) the secular


Constitution
Malaysia is not an Islamic state. The Constitution is
the highest law of the Federation, not al-Quran and
Sunnah.
To implement hudud crimes against God would
mean the State are empowered to punish individuals for
going against the limits ordained by God.
As Malaysia is not an Islamic state, this would
tantamount to putting the responsibility on the State to
punish those who transgressed limits placed by God.
Malaysia must be made into an Islamic state first.
Syahredzan Johan | Partner, RamRais & Partners

Overcoming the challenges


Can Kelantan implement hudud as proposed by
PAS?
Challenge (1) needs a simple majority, challenge (2)
arguably needs a constitutional amendment but
challenges (3), (4) and (5) certainly need
constitutional amendments.
Answer is no not unless the constitution is
amended.
Syahredzan Johan | Partner, RamRais & Partners

Overcoming the challenges


Can the Constitution be amended for Kelantan to
implement hudud?
Basic
structure
doctrine

constitutional
amendments that disturb the basic structure of the
Constitution is unconstitutional.
Amending the Constitution to make Malaysia an
Islamic state and amending the Constitution to take
away safeguards in Articles 7 and 8 would disturb
basic structure of the Constitution, thus would be
unconstitutional.
Syahredzan Johan | Partner, RamRais & Partners

Hudud and an Islamic state


Hudud is just one part of the whole the whole being an
Islamic state encompassing every aspect of life.
To take one isolated aspect of Islamic law and to import
it into the current system would not do justice to hudud
and Islamic law as a whole.
In the present condition, it will not result in achieving
justice in Islam, but may create injustices.
Hudud should be implemented only in an Islamic where
all the institutions of the State are in line with the
Syariah.
Syahredzan Johan | Partner, RamRais & Partners

Thank you
Syahredzan Johan | Partner, RamRais & Partners