OCT 3 — There are basically three groups when it comes to hudud law implementation in Malaysia. While PAS has been consistent on the matter, DAP, the Islamic party’s partner in Pakatan Rakyat, has been consistent in opposing it together with MCA and Gerakan from the ruling Barisan Nasional.
Meanwhile Umno, the leading partner in BN, has been sitting on the fences.
It is therefore interesting to find Prime Minister Najib Razak — echoing Professor Aziz Bari — saying that elements of hudud law are there already in the legal system. This is quite true given the existence of “moral laws” in the form of syariah criminal laws even though their provisions are not a hundred per cent Islamic.
Whatever it is, that position alone is good enough to put question mark on the assertion of hudud opponents that such a law cannot be put into practice in Malaysia as the Constitution and the legal system it created are both secular.
Indeed there are many provisions in the Constitution that allow the application of Islamic law, eg in the provision of Article 11 on the right to religious freedom when the parties involved are Muslims.
One can also mention the provisions in the state constitution on the qualification of the heirs to the throne, most of which have been taken from the writings of classical Muslim jurists. And whatever one has to say about the impact of Article 3(1), the plain meaning of the provision is that Islam has somewhat become the faith of the nation.
The bottom line of those provisions is that Islam has quite permeated the system. Whether or not Islam has become the benchmark is not quite important. But it looks like that it has either equal or superior status compared to the English common law.
For one thing, the Civil Law Act 1965 clearly provides that English common law can only be applied when there is a lacuna; when there is no law available. In simple terms, English common law is just nasi tambah, not the main course.
The hudud opponents also cite Article 4(1) and the Supreme Court decision in Che Omar bin Che Soh (1988) to say that religious law — or, more specifically, Islamic law — has no place in Malaysia.
It has to be said that Article 4(1) is a problematic provision. While the aim is clear — that is to guarantee order in the constitutional structure — it has been badly drafted. That is why some judges, such as the one in Chia Kin Tze (1958), got it wrong. We were lucky to have Surinder Singh Kanda (1962) where Lord Denning taught us the meaning of constitutional supremacy.
What is important from this landmark case is that all laws, executive decisions and so on must be done within the constitutional constraints. It pretty clear that the constraint that our constitution has in mind is not vague standards such as democratic character or religious contents. What the Constitution requires is simply that the law or the decision must be made by the right authority and that it does not go against any of its provisions.
Now, is there any provision in the Constitution that prohibits the application of Islamic law? This is the one question that has to be dealt before one asserts the need to amend the Constitution to facilitate hudud.
As for the controversial case, the court did not actually say that we are a secular state. The case merely rejected the argument that Islamic law should become the benchmark to determine the legality of laws in this country.
And this is perfectly sound for the law is considered valid so long as it has gone through the right procedure. We can take the law from any source: Islam, Christianity, Hinduism and so on. What is crucial is these materials must pass the test laid down by the Constitution.
Another argument that has been put up to oppose hudud law — as envisaged by Kelantan Mentri Besar Nik Aziz Nik Mat — is that it would create more divisions and inequality in our society. Perhaps one should remember the right to equality under the Constitution is not absolute. This is evident from Article 8 itself and has been further reinforced by various court decisions over the years.
And equality certainly has to make way for the federal principle that is central to our syariah criminal law system. It is trite legal principle that the law and the system are presumed to be valid; it is for the party who claims otherwise to show the proof.
Somehow both the Constitution and the case law tend to show that in the event of conflict between federal and states, they have sided with the states. One good example is the Supreme Court case of Mamat bin Daud (1988) where both federal and state authorities claimed jurisdiction. But as the issue in question centred around religious conflicts, the court ruled for the states. In this case, public order that has been put under federal authorities had to take a back seat.
Back to the present debate on hudud. The state seems to have a bigger claim. For one thing, the syariah criminal system is already in their hands. And the hudud as envisaged by Kelantan seems to be a mere upgrading of the existing laws.
As such, there is no reason why the federal authorities should oppose. Indeed, questions have been asked about the legality of Syariah Court Act 1965, which tied the hands of the syariah courts: Why should Parliament make law on something that is not within its power?
Under the Constitution, the syariah court and Islamic law are both under the states. Perhaps one should remember that as the Constitution is silent the meaning of Islamic law has to be determined by reference to Islamic law itself.
As far as the dual justice system is concerned, it has been around for too long; it is even older than the Constitution itself. Like in other parts of the world, the judges would not want to sow the seeds that eventually make the system fall apart.
This is a matter for the people to decide, not the non-elected judges.
*Abu Umar reads The Malaysian Insider
* This is the personal opinion of the writer or publication. The Malaysian Insider does not endorse the view unless specified.
