I asked my students during a lecture proper, “How many states in Malaysia enforce Islamic criminal law?” Some of them had no idea what I was asking and kept quiet but others, referring to the recent development in Kelantan, enthusiastically answered “One”. I do not blame my students for their ignorance since many people in Malaysia are of the same opinion, too.

First of all, EVERY state in Malaysia enforces Islamic criminal law, and not just Kelantan. In Penang, for example, there are at least 40 offences listed in the Syariah Criminal Offences (State of Penang) Enactment 1996. Among them are:

(a) Sexual intercourse out of wedlock, contrary to Section 23, which is punishable by a fine not exceeding RM5,000 or imprisonment for a term not exceeding three years or whipping not exceeding six strokes or any combination thereof;

(b) A male person posing as a woman for immoral purposes, contrary to Section 28, which is punishable by a fine not exceeding RM1,000 or imprisonment for a term not exceeding one year or both; and

(c) An indecent act in a public place, contrary to Section 29, which is punishable by a fine not exceeding RM1,000 or imprisonment not exceeding six months or both.

Although criminal law is listed in item 4 of List I (Federal List) of the Ninth Schedule to the federal constitution, a state legislative assembly (SLA) is empowered to enact Islamic criminal law by virtue of item 1 of List II (State List) of the Ninth Schedule to the federal constitution.

Syariah courts are conferred with the jurisdiction to punish for the offences against the precepts of the religion of Islam, by virtue of the Syariah Courts (Criminal Jurisdiction) Act 1965, which originally applies only to Malayan states but later extended to Sabah and Sarawak, following the passing of the Syariah Courts (Criminal Jurisdiction) (Amendment and Extension) Act 1989.

Nevertheless, Section 2 of the said 1965 Act provides two limitations, that is to say, (i) that Islamic criminal law shall only be enforceable on persons professing the religion of Islam (the same limitation is also provided in item 1 of State List); and (ii) that such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding RM5,000 or with whipping exceeding six strokes or exceeding any combination thereof.

The interesting fact to consider is that neither Barisan Nasional (BN) nor Pakatan Rakyat component parties has any problem whatsoever with such enforceability of Islamic criminal law in all Malaysian states.

However, all hell breaks loose when the Kelantan legislative assembly, led by Parti Islam Se-Malaysia (PAS), has recently amended the controversial Syariah Criminal Code (II) Enactment 1993 to iron out certain issues.

Controversial piece of legislation

The 1993 Enactment was a controversial piece of legislation for not only it provides for punishments like imprisonment and whipping exceeding the limits allowed by the 1965 Act but also for introducing additional punishments like amputation of limbs and death penalty by stoning!

Unlike other Islamic criminal law, the 1993 Enactment cannot be enforced even after the recent amendment because it goes against the provisions of the 1965 Act. Item 1 of the State List clearly provides that although SLA may create offences against the precepts of the religion of Islam, Syariah courts shall only be conferred with the jurisdiction to pass sentences by federal laws, like the 1965 Act.

For the same reason, when the Terengganu legislative assembly passed the equally controversial Syariah Criminal Offence (Hudud and Qisas) Enactment 2002, that too remains unenforceable up till now.

Obviously, I am against death penalty by stoning in broad daylight! My opinion is that crimes should be proved in accordance with the modern methods of evidence, and that the punishments should be carried out behind closed doors. However, my opinion on hudud is simply irrelevant!

For those who are not familiar, hudud mean offences for which the punishments are fixed by Allah as stated in the Qur’an. As such, no Muslim worth his salt will oppose hudud. Furthermore, if any non-Muslim opposes hudud, this act may be deemed as interference into the religious practice of another.

So, if it was wrong for Dr Ridhuan Tee Abdullah to condemn the erection of Lord Murugan’s statue in Batu Caves, then it is also wrong for non-Muslims to tell the Muslims to disregard what has been made mandatory by Allah in the Qur’an.

Since the law on hudud is an integral part of the Islamic religion, then it is better for non-Muslims not to make any comment. Of course, there are some Muslim scholars who have formed a different view on hudud. Even then, it is for the Muslims to debate and sort out their religious differences.

Accordingly, if PAS wants to enforce the 1993 Enactment in Kelantan, then the 1965 Act has to be amended by removing the limitation and conferring extended criminal jurisdiction on Syariah courts to pass sentences like amputation of limbs and death penalty by stoning. This can only be done in the Parliament, and not in the Kelantan legislative assembly.

Be that as it may, I have a few concerns of my own and these are pertaining to law and justice, and not religion.

Firstly, only those who profess the religion of Islam may be subjected to Islamic criminal law and NOT all Muslims. These words were clearly mentioned in item 1 of the State List, and also in Section 2 of the 1965 Act. Yet Section 2 of the Administration of the Religion of Islam (State of Penang) Enactment 2004 provides that a Muslim is not only a person who professes the religion of Islam but also any person:

(a) Whose either parent at the time of his birth was a Muslim;

(b) Whose upbringing was conducted on the basis that he is a Muslim;

(d) Who has converted to the religion of Islam; and

(e) Who is shown to have stated, in circumstances in which he was bound by law to state the truth, that he was a Muslim, whether the statement be oral or written.

In other words, a person who does not profess the religion of Islam (say, a child of a Muslim who has been brought up as a Christian all his entire life) can still be regarded as a Muslim by law. In my judgment, Islamic criminal law (hudud or otherwise) should not be applicable to him.

Secondly, a Muslim person, who commits any crime against a non-Muslim, shall not be charged under Islamic criminal law but under the Penal Code or other federal laws. This is to ensure that a non-Muslim does not have to go to Syariah courts to seek justice.

Need to amend Article 121(A)

Thirdly, Article 121(1A) of the federal constitution must be amended so that only the High Court in Malaya or in Sabah and Sarawak, as the case may be, shall have the jurisdiction to decide whether or not a person professes the religion of Islam before he is charged in a Syariah court for any offences against the precepts of Islam. This is important so that Syariah courts will remain inferior to such a High Court.

In conclusion, I submit that it is much better for all concerned parties to work together and find ways to resolve issues than to blindly support or object any motion pertaining to the enforceability of Islamic criminal law.

Before I end, there is one more thing that I wish to comment, although it has nothing to do with regards to law.

Some members of the Democratic Action Party (DAP) are now urging the party to sever all ties with PAS. The 1993 Enactment has been there since, of course, 1993 and yet DAP has no problem in forming an allegiance with PAS before the 2008 general election. Prior to the recent development in Kelantan, DAP had never asked PAS even once to repeal the 1993 Enactment. I personally think it is not fair to PAS.

If DAP was so concerned about the ‘no-hudud’ agenda, it should not have formed the allegiance with PAS until and unless PAS repeals the 1993 Enactment.

Also, some members of the Malaysian Chinese Association (MCA) are condemning DAP for allowing PAS to amend the 1993 Enactment. May I humbly remind MCA that 12 United Malays National Organisation (Umno) members did vote in favour of the bill to amend the 1993 Enactment. Also, Syariah Criminal Offence (Hudud and Qisas) Enactment 2002 is still very much valid in Terengganu although BN has been ruling the state for many years.

Can MCA and other component parties in BN persuade the Terengganu legislative assembly to repeal the 2002 Enactment? If not, then they have nothing to complain about to DAP.

SHAMSER SINGH THIND is a law lecturer at a private college.