The following were my responses given during a dialogue session with the non-Muslim representatives, particularly those from MCA and GERAKAN Kelantan recently held in Kota Bharu on the 31st May, 2016.
1. In the first place, why is it necessary to amend the Act 355?
The proposed amendments to the Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355) primarily aims at elevating the jurisdiction of Syariah Court which is currently limited to the maximum punishment of 3 years imprisonment, or RM5,000 fine or 6 syar’ie strokes. The Act 355 was last amended in 1984 to increase the punishment from the previous 6 months’ imprisonment and fine of RM1,000. The present punishments are not just outdated but their sheer limitation in scope fail to effectively serve as both private and public deterrence for offenders. Accordingly, the crux of the proposal is to increase the penalties to the maximum level as enshrined by the Shari’ah (Islamic law) save for the death penalty. Nonetheless, the exact quantum of fine, imprisonment and strokes of rotan for the respective offences will be left for the determination by the respective State Legislative Assembly.
2. Wouldn’t the 100-strokes appear to be extreme?
The implementation of the Syarie stroke of rotan is markedly different from the way it currently being conducted under the civil law. The Shari’ah strongly prohibits any form of harmful imposition of the stroke. For example, the strength of a stroke is predominantly measured by the level of its swing. Shariah only permits the harmless kind of stroke. The analogy being, if a book is to be placed between the arm and the body of the person in-charged, the book will not fall during the swinging process. Clearly, the 100-strokes possibly imposed under the Syariah is no where in comparison to the one harmful stroke given under the civil law.
3. Would the Act 355 indirectly affect the Non-Muslims?
It is impossible for the Non-muslims to be the subjects of the Syariah Court as the Federal Constitution (being the supreme law of the land) confines the jurisdiction of Syariah Court to the Muslims only. Section 2 of the Act 355 clearly stipulates that only Muslims shall be triable and punishable in the Syariah Court.
4. Can the Act 355 be regarded as a ‘back-door way’ towards the implementation of Hudud?
It is crucial to stress that The Act 355 has nothing to do with Hudud. If Hudud is to be implemented, it requires at least 3 statutory amendments to the Federal Constitution. Certainly it is not by amending the Act 355 which merely relates to the jurisdiction of Syariah Court as expressly provided in Item I, State List of the 9th Schedule, Federal Constitution.
5. Can the Federal Constitution be amended?
Yes, but only with the required 2/3 majority votes of the members of Dewan Rakyat (House of Representatives); or 148 from the total of 222 MPs who are agreeable to support any amendment to the Constitution. In the current political scenario, assuming that all 135 Muslim MPs from UMNO, PAS, PKR, PAN, PBB and DAP vote for any amendment, they would still fail to form the required majority to effect such an amendment. Accordingly, the Non-Muslim MPs possess equal rights and authority to determine on the implementation of Hudud.*
6. Which is the relevant part in the Federal Constitution that needs to be amended in order to enable for Hudud to be implemented in Malaysia?
There are at least 3 parts in the Constitution which require prior amendments for the said purpose:
(i) List II of the 9th Schedule to include additional criminal jurisdiction to the Syariah Courts as provided in Item I: namely, the inclusion of criminal offences such as theft, robbery, rape, murder and causing grievous hurt (offences currently prescribed by the Penal Code); and for the purposes of implementation, the enlargement of the jurisdiction of Civil Court, polDATO’ LOKMAN ADAM:
The authority of the Malay Rulers because regardless the level of maximum punishment to be approved by the Parliament, the final amendments still lie within the power of State Legislative Assembly (DUN).
While the Government is subject to all these specific procedures, the Opposition, e.g. PAS is free to pass its private proposal before the Parliament. In fact, PAS has always been keen to bring the presentation of the Bill in the Parliament and it is the privilege of the Government to expedite the process to make it happen.
DR ASYRAF WAJDI DUSUKI
1st June, 2016