Hudud issue is not a new issue. It has been debated for quite long. A few years ago, PAS, an Islamic political party introduced an enactment relating to hudud laws. What actually hudud means? Hudud generally is laws relating to crimes, punishments and rights and duties that are mention in the quran. During PAS’s administration in Kelantan and Terengganu, there are 3 versions of hudud. First, syariah criminal enactment 1993 which contains 72 articles. Second, the bill tabled in 2002, named syariah criminal offences enactment bill (hudud and qisas) containing 74 articles. The last, syariah criminal offences enactment ( hudud and qisas) which contains 67 articles. The state government during this time claimed that they have power to enact such laws. In this writing I will comment on this based on constitutional perspective.
Legally, my stand towards hudud is, it cannot be enacted in Malaysia. Malaysia is a federation comprising 14 states and have dual systems of government, federal and state government. When talking about hudud, we are dealing with constitution and federalism. Malaysia as a federation has strong central government than the regional government. Constitution is the highest law as stated in article 4(1) and any law which contradict with the constitution, state law contradict with the federal law, and any law which is made not within the jurisdiction shall be null and void. All these are provided in our constitution which is the supreme law.
Reasons why hudud cannot be enacted in Malaysia. First, schedule 9 in the federal constitution provides that state legislative has power to make law relating to the punishment and offences by person professing and practicing the religion of Islam against percept of that religion except in regard to matters in the federal list. This means, state has power to make and enact any law but subject to the matters which included in the federal list. Any matters contained in the federal list, the state has no power. In list 1 of the constitution, among matters which included in the federal list, administration of justice, jurisdiction and power of all courts, criminal law and procedure, creation of offences in respect of any matters are in the federal hands.
Federal penal code has made it clear. Any criminal offences like rape, incest, gross indecency, murder, homicide, robbery, and theft are stated in the penal code which is the federal law. This is in accordance with the list 1 or federal list. Let say hudud is implemented in state. We need to deal with the criminal offences which within the federal list but hudud law is law enacted by state. It is clearly unconstitutional. This is an intrusion towards the federal power.
If we look to the list 2 of ninth schedule, syariah court has jurisdiction towards muslims only means person professing the religion of Islam. This has been stated by the court for example in the case of subashini, it was held that non Muslim cannot be brought to the syariah court. That means syariah court has no jurisdiction over non Muslim. If hudud is enacted by state, Muslim offender will be charged in syariah court and non muslim will be charged in civil court. Where is the equality before the law and equal protection of the law?
Next, the syariah law is not naturally provided. It must be derived and subject to the federal law. Refer to the ninth schedule in list 2 clearly provides that sayriah court has no jurisdiction in respect of offences except in so far as conferred by federal law. Syariah courts act 1965 (criminal jurisdiction) is a federal law. The limit of punishment imposed by this act towards the syariah court is it can only sentence maximum 3 years jail and rm5000 fine and 6 lashes. That is why the syariah court can only impose punishment towards offenses such as khalwat, arak, not fasting, missing Friday prayers and etc. The syariah court cannot impose punishment other than permitted by this act. This is the consequences by this limit. Meaning that, any punishment other than these permitted penalties shall be unconstitutional. Hudud law comprises the punishments like amputation of hands, stoning, or death sentence for qisas are outside the permitted limit. So implicitly, it against the federal law and therefore shall be unconstitutional, null, and void.
The next issue aroused is the enforcement of the hudud laws. The question is who has the jurisdiction to enforce such laws? It will cause constitutional dispute when it comes to the enforcement, the arrestment and detention of the hudud offenders. The problem may be settled if the state set up their own enforcement unit. But surely they will seek help from the federal police. Indirectly, constitutional problem will arise since the police’s powers are derived from the federal constitution and federal laws like police act 1967. Lastly, the ninth schedule list 1 of the federal constitution provides that, police, prisons, remand homes, and places of detention are in the federal list. If the state wants to run their own detention centre, it will be outside the power of the state authorities and therefore is submitted unconstitutional.
If we still want to enact hudud laws, we will face so many difficulties. It is not easy to enact. Hudud laws cannot be enacted by state and state needs the help from the parliament to enact hudud. The implementation of hudud in Terengganu and Kelantan has been challenged by Zaid Ibrahim in court but the case was revoked by him. The implementation of hudud can be done constitutionally by amending many provisions in the constitution. That is why it is difficult and to amend since any constitutional amendment needs to get the support of two thirds lawmakers in parliament. This is almost impossible.