Loyal Followers

Tuesday, October 04, 2011

Hudud – Federal vs State Legislative Powers

I have stated in my article, Of wet dream, nightmare and Marty McFly that the implementation of hudud is a Constitutional impossibility until and unless two-third of our Members of Parliament would vote to amend the Federal Constitution to allow it to happen. I also grimly stated in that article that the time when such Constitutional amendment is moved would be the first time when our Members of Parliament would vote solely or predominantly along racial and religious line regardless of party policy or party whip.

The Bar Council has since issued a statement which basically echoes my opinion. Lim Chee Wee, the Bar Council’s President was quoted as saying:

“Hudud cannot be implemented within the current constitutional and legislative framework.”

My friend, the learned Professor Aziz Bari was reported to have disagreed with the Bar Council’s view. The learned Professor was quoted to say:

“The key here is Islam, not criminal law.”

The learned Professor pointed out that the Federal Constitution has set out the respective jurisdiction and powers of the Federal and State legislature. As the powers to legislate on matters pertaining to Islam rests with the State, he argued that the State, including Kelantan, may pass hudud laws accordingly. He also refuted that such move would result in double jeopardy for Muslim wrongdoers as, in his words:

“In other words, two systems is not a problem and we are not the only country in the world where this duality prevails.”

I have the highest of respect and regard for the learned Professor but I beg to differ on his opinion on this matter.

While I acknowledge and admit that the respective State Legislative Assembly (“SLA”) has the power to legislate on matters pertaining to Islam, I am somewhat doubtful that the SLA may pass any kind of law which creates offences and prescribes punishment for those offences in accordance with the tenet of Islam, especially when such offences and punishments are already created and prescribed by the Parliament.

The Federal Constitution divides the legislative powers between the Parliament and SLA quite clearly. The Parliament, or loosely, the Federal government, has the power to legislate over matters specified in List 1 (or otherwise known as the “Federal List”) of the 9th Schedule of the Federal Constitution. The SLA on the other hand may legislate on those matters in List II (also known as the “State List”) of the 9th Schedule. In addition, there are matters which may be legislated by both the Parliament and the SLA. These are contained in List III of the 9th Schedule (also known as the “Concurrent List”).

Included in the Federal List is, among other things, “civil and criminal” law; the constitution of all courts other than the Syariah Courts and the jurisdiction and powers of all such courts.

That much is clear. All this while, it is the Parliament which creates and defines all criminal offences as well as prescribing all punishment for those offences. There is no doubt about that. (In this respect, there are already laws governing murder, theft and slander, which are three of the hudud offences prescribed by the Quran. The only hudud offence which is not criminalised by the secular law is adultery).

In the meantime, the SLA may pass laws relating to several Islamic matters. Let’s reproduce the whole paragraph 1 of the State List, so as not to cause any confusion*:

Except with respect to the Federal Territories of Kuala Lumpur and Labuan,

i. Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy guardianship, gifts, partitions and non- charitable trusts; Wakafs and the definition and regulation of charitable and religious endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs. Zakat, Fitrah and Baitulmal or similar Islamic religious revenue, mosques or any Islamic public places of worship,

ii. 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;

iii. the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over person 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,

iv. the control of propagating doctrines and beliefs among persons professing the religion of Islam;

v. the determination of matters of Islamic law and doctrine Malay custom. (emphasis is mine).

*The above provision is actually contained in one paragraph. I have broken it into several parts denoting the different areas of Islamic matters which the SLA may legislate to maintain clarity.

The learned Professor opined that “power on Islamic law belongs to the State.” He then referred to the decision of our Supreme Court (then, the highest Court in Malaysia) Mamat bin Daud vs Govt of Malaysia where the Court held that a provision in the Penal Code which impacted on Islamic law was invalid as the Parliament had no power to legislate over Islamic matters. The learned Professor therefore challenged the Bar Council’s view that the Kelantan State does not have the power to enact the hudud law.

It is quite clear from the State List reproduced above that various Islamic matters are within the purview of the SLA. The decision in Mamat bin Daud reinforces the view that strict adherence to the respective lists by the Parliament and the SLA in enacting laws is called for. In that case, a provision was included in the Penal Code by the Parliament which makes it an offence for anybody to cause religious disunity. The purport of that section was to maintain public order, a matter which is quite obviously within the purview of the Parliament. However, in a 3-2 majority decision (with the late Eusoffee Abdoolcader, among others, dissenting), the Supreme Court held that that provision impinges on Islamic matters, which is in the State List and consequently the Parliament had no power to legislate on it.

It follows from that decision that the Court jealously guarded the purview, width and breadth of the respective Federal and State lists. No amount of encroachment will be allowed by either the Parliament or the SLA on each other’s powers. Although the offence created by the Parliament in that case falls under public order, which comes under the purview of the Parliament, the Court still viewed that as an encroachment of the SLA’s power to legislate on Islamic matters.

It is therefore clear and obvious that the Court took a strict and stringent approach in determining the rights and powers to legislate of the Parliament and the SLA.

Applying that strict rule, it is my humble opinion that the Kelantan State Legislative Assembly does NOT have the power to legislate on hudud laws or the power to create criminal offences and prescribe “Islamic” punishments for those offences. Matters concerning civil and criminal laws are clearly within the power and purview of the Parliament by virtue of the Federal List.

To allow the Kelantan State Legislative Assembly to enact a law to create hudud offences and prescribe punishment for those offences would amount to the usurpation by the Kelantan State Legislative Assembly of the Parliament’s power to legislate over criminal matters. Applying the strict approach in Mamat bin Daud case, any law passed by the Kelantanese State Legislative Assembly as such would be void for being ultra vires the Federal Constitution.

Is it true that hudud comes within the State List and therefore the SLA has the power to legislate on it? We have to analyse the above State List to answer this question.

Paragraph (i) above concerns family, personal, inheritance and trust matters. That much is clear. Hudud does not come within the ambit of paragraph (i) above.

The bone of contention is paragraph (ii) above. It states that the SLA has the power over 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.

There are three important points to be made about this provision.

Firstly, the said provision is far narrower than the power given to the Parliament. Paragraph 4 of the Federal List spells out in the widest term possible the power of the Parliament to legislate over “civil and criminal law.” That includes everything under the sun. The only exception is “Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts and succession, testate and intestate.” Any other matters would come within the power of the Parliament to legislate.

Contrast that provision to paragraph (ii) above. Paragraph (ii) does not say “Islamic civil and criminal laws.” Nor does it say “the creation and punishment of offences IN the precepts of that religion.” It also contains a very important exception, namely, “except in regard to matters included in the Federal List.”

That brings me to my second point. Paragraph (ii) above only gives the SLA power to create and punish offences AGAINST the precepts of Islam. It does not give power to the SLA to create and punish offences IN the precepts of Islam. The established hudud offences, namely, murder, adultery, slander and theft are not offences against the precepts of Islam. They are offences within or in accordance with the precepts of Islam.

The failure to observe and appreciate this aspect of the provision has often led to a misconception that the State has the power to create any kind of offences as long as those offences are regarded as offences IN Islam. That is entirely wrong.

No less than our Federal Court, in Sulaiman Bin Takrib v Kerajaan Negeri Trengganu & Anor has, with respect, fallen into such interpretational misdeed when it held that the SLA had power to create offences “against the precepts of Islam” although by doing so, a criminal offence would be create so long as no such offence has been created by the Parliament. Former Chief Justice Abdul Hamid in his judgment says:

“In the instant case, as the offences are offences against the precept of Islam, as there are no similar offences in the federal law and the impugned offences specifically cover Muslims only and pertaining to Islam only, clearly it cannot be argued that they are “criminal law” as envisage by the Constitution.”

It has been my absolute pleasure and honour to have appeared before the learned CJ on some occasions. FCJ Abdul Hamid was a learned Judge for whom I have the highest of respect. However, his Lordship’s test in the above case is, in my humble opinion, wholly unsatisfactory.

The test is not whether there has been an offence created by the Parliament on the issue at hand. Rather the test is whether the offence created by the State Legislative Assembly is “against the precepts of Islam.” In this respect, offences AGAINST the precepts of Islam are totally different in nature and manifestation from offences IN the precepts of Islam.

This brings me to my third point. Paragraph (ii) above clearly prohibits the SLA from legislating on matters which “are included in the Federal list.” How clearer can that be? Is there any ambiguity there?

The prohibition is as clear as daylight. As long as the matter sought to be legislated by the SLA is included in the Federal list, the SLA is prohibited from legislating on it. That prohibition is absolute. Applying Mamat bin Daud above, that prohibition must be strictly observed. It does not say the prohibition only applies if the matters are included in the Federal list and they have been legislated by the Parliament. CJ Abdul Hamid is wrong in Sulaiman Takrib case in this respect.

It is clear therefore that the State list does not vest the Kelantan State Legislative Assembly, or any other SLA for that matter, the power to pass hudud laws or to create criminal offences. The law passed by the Kelantan State Legislative Assembly on hudud, in my humble opinion, is void for being ultra vires the Federal Constitution.

24 comments:

Amir Hamzah said...

Well written bro. But you missed Article 121(1)(A), which was misinterpreted by our learned friend Eusoff Chin.

Hantu Laut said...

Article 75 of the Federal constitution says it all.Obviously, the learned professor did not read the supreme law of the land.

Anonymous said...

They really dont care. They will argue islam say this and that and is all encompassing.

In Pakistan, hudud even include death for blasphemy,the politicians there dont even hv the balls to throw it away (knowing that hudud cover 4 areas of punishment only).Nobody can outwit human ingenuity.

Anonymous said...

Ayai! not so smart professor, if two can become 'one', why separate the scope of legislative power under federal and state.Each had its own role.Since he appears to know so much,maybe we should ask him to discuss divine law and why sharia enactments varies from state to state.

Anonymous said...

As a Muslim lawyer, I wish you would help to find 'loopholes' that would make the implementation possible. Paling tidak, we all would be able to answer our Maker truthfully that we have truly tried.

This is one time that I truly regret not taking up Law.

-MAKORANG-

Sing Lau said...

Sir, thank you for stating the fact of the matter in plain simple term.
Always a great pleasure to read something rational and logical.

Anonymous said...

Art

You must know the psyche of the malay professor.He want to show that he is a responsible muslim- defending islam/hudud. Perception is everything in muslim community.

Case study (1): Pakistan has dual criminal system.Has Hudud deter violent crime and produce a 'just' society?.In fact,security/safety has worsen since Gen Zia implemented it,(google) check it out whether the dual systems is the answer.

PahNur said...

“The key here is Islam, not criminal law.”

If hudud comprises of punishment of "apostates", stoning to death adulterers, public flogging of public alcohol consumers, and many other non-sensical not to mention against the International Human Rights, then Hudud IS a crime...it is a man made nothing to do with god's crime made into a law...anyone with an IQ score of slightly more than their age will be able to decipher this....

Anonymous said...

PahNur, agreed. God preserve and save life.I also think all this talk about punishment is man-make. God is merciful and compassionate.

Anonymous said...

The learned Professor is not arguing on the basis of your item (ii) of Para 1 of the State List i.e. "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;"

He is arguing on the basis of your item (i) i.e. "Islamic law ...including". You look at item (i) as being confined to matters concerning "family, personal, inheritance and trust." The learned Prof looks at the phrase "Islamic law' there as encompassing all Islamic law including hudud. Further, the list is an inclusive list i.e. "Islamic law ...including." It is not restricted to personal matters.

So I think you did not quite address the point when you argued on the basis of item (ii) i.e. "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;"

art harun said...

Anonymous @ 7/10/11.

The general provision in the 1st part of the State List which empowers the state to legislate on "Islamic law and personal law and family law of persons profession the religion of Islam" cannot ever be used to substantiate the argument that the State may therefore create offences under Islamic faith because of the maxim generalibus specialia derogant, which means wherever there is a special provision, such special provision would exclude the operation of the general provision.

As we can see, the creation of offences is covered by a specific provision (listed as item (ii) in my article) and therefore one cannot fall back on the general provision to empower the State to legislate on Islamic offences. Furthermore, it is obvious that the general provision is restricted to a genus of law, namely, family, personal and inheritance laws.

abnizar said...

PahNur, i am in full agreement with you. Syariah laws would find its basis in the Qura'n but Hudud-law forms of punishments are man-made, & its my humble view that its derogatory to precepts of Islam.
Even if supposing, Kelantan under PAS want to legislate the hudud punishments, there is safeguad in the way of Federal authorities chalenging it in the Federal Court successfully.
That matter aside, why people dread & express fear of Hudud, would be based on "political" reality that MAY happen in the future. PAS going all to canvass this & try and gain MAJORITY support to wrest Federal Power. If ( IF ) they succeed in a millenium, thet COULD change the Federal Consitution - theoretically. That's the reason why we all as sane people should fear from NOW about this abominable laws on punishments...
ABNIZAR

Anonymous said...

Two ways to argue.

1) If we follow strictly letter of law,then we need parliament to change penal code before hudud can be implemented.

2) If we argue islam(islamic law) is all encompassing, then the ruler(being head of religious affair) has the say to implement hudud law of sharia in each state.

Question: where the enforcing agency derive their power of authority,- Is it from sharia or from political source??..just curious

Anonymous said...

Art,
In the Star today, Dr Mariah Mahmud,PAS MP for Kota Raja,in response to S.I.S earlier commments gives her overview on hudud (that as a Muslim one cannot go against Allah's decree [on hudud] but you can question the enactments and their implementation).
Since you have done a lot of research on the matter, i hope you can comment on her views, esp on whether what she said (regarding the various hudud implementation issues) have been expressly provided for in the PAS's proposed 'hudud' enactment (notably the issue of burden of proof in case of qazaf for rape cases).TQ

Anonymous said...

Also read star,pg Nation12. Sharia Acts talk about limit in jurisdiction giving out punishments,-imprison, fine, cane.. if one want to include chopping and stoning, then the writer say we need to change the law in the constitution.

Regarding Dr Mariah comment,this type of argument will stop all debate--by quoting one cannot go against Allah's decree.but Can one question why hudud varies(slightly) from country to country..and talk abt divinity?

Anonymous said...

anon 12.04pm,9 oct

Any difference, Ayattollah say those who challenge them are 'enemy of God', any difference Taliban issued edict and forbid girls to go schooling and work. They all claim you cannot go against God's decree..men got brain rite!go figure out!

Anonymous said...

anon 10 October 2011 10:23, whether what PAS ( read Nik Aziz & endorsed by anwar ibrahim) is doing is akin to edicts by Ayatollah & Taliban, Nik Aziz and anwar have to explain it themselves.
Anyway I think the public deserves to know whether the PAS's so-called 'hudud enactments' are really in compliance with what are stated in the Holy Quran, hadiths and other religious requirements.
The public also deserves to know whether PAS government has already prepared complete framework and mechanisms which comply with Syariah and can be endorsed by the 'enforcement' agencies that are going to enforce the sentences justly under the 'hudud' laws.
It is just not about playing politics by saying we really want to enforce hudud laws BUT CANNOT DO SO because it is not allowed Dr Mahathir and now by UMNO.
I think the public deserves better than that.

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Anonymous said...

Well written bro. But do people really want hudud?

Anonymous said...

Those who advocate Hudud, do it on your own son who stole PASTI money and Kohilal money.

Let me opt out of Islam first before any implementation.

Anonymous said...

Art,

Sorry about off-topic.

But I remember there was a picture of some MCA females posted before, and the title was something like "when I grow up I want to join MCA". But now we see no more of that...

Any problem with that ?

Anonymous said...

Rather than talking bout laws n such..why dont explaining hudud itself first..ingat senang2 ke mau potong tangan orang??..lol..

perfesser said...

The satement by the learned professor Aziz Bari from Sabak Bernam, the poorest district in Selangor, is interesting to say the least.

What should be the focus of modern Malay society would be effect of hudud on the advancement of civil Malay society. It is not just about Islam.

It is not just about Islam as there are many varieties of Islam from the middle east, Syiah Islam and Sunni Islam being just the two major fighting sects.

The Saudi Arabians Islam are killling their brother Iranian Islam every day even today.

And these two, plus Indian Pakistan are practiser of hudud. An Indonesian maid was beheaded a few months back which incensed Indonesia.

In Pakistan women who get pregnant outside of marriage are punished. There is no concept of rape as consent of women for sex is never required.

And so to Kelantan. It has among the highest incident of HIV.

Its male population regularly cross over to Golok for sex . Polygamy is freely practice. Divorces among Malays are high.

PAS Deputy President himself was quoted on the youtube as complaining that his face bau burit Mah.

So back to our learned Professor Aziz Bari from the poorest district in Selangor. See how a poor boy from a poor family get be a learned professor using the social system that was developed by secular UMNO.

But apparently what he learned does not involved history or economics or war.

The Arabs have been continuously whipped by the secular west, its leaders killed by their own people aka Saddam and Gaddhafi.

So what I would like to ask our learned Professor is, does he want the Malays to be like Arabs?

Does he want to stop Malay women from driving? For that is the core of hudud. The control of women. Women are not allowed to be judges. Women cannot be a witness. If you sign an agreement 4 malay women are required compared with 2 malay men.

Why dont the Arab allow women to drive? Because the Arab men knows given the chance the women would drive off to meet their office lovers or colleagues or facebook friends etc...

So again if you can ask the poor professor, now richer by association with AI, should hudud be applied to the learned professor and his friend first,
what does he get by chopping of thieves hands like they do in 600 AD or now in Saudi Arabia?

Though the sight of Kelantanese being chopped off their hands maybe a tourism earner I must admit.

I must admit I would be the first go and witness such punishment in Kelantan. Nothing like the sight of the men petrified face and horror as the sharp parang come down on his hands and blood spurting..hmmm

Anonymous said...

Interesting comments. If a Muslim man A robs a Muslim man B on the street, does this fall under Federal criminal law or State Islamic law? If it falls under State Islamic law, what if the decreed punishment is chopping off A's hands - does A have any piece of Federal statute to save him?

What if Christian man A robs Muslim man B - Federal or State Islamic law? How do we draw the clear, bright line between the jurisdiction of Federal and State Islamic laws? Thank you.