Defending the basic structure

It appears that PAS will be seeking to give effect to the Kelantan Syariah Criminal Code Enactment II of 1993 by way of a Private Members Bill in Parliament. Through this, PAS aims to introduce hudud laws into Kelantan for Muslims living I the state. The term ‘hudud’ (literally “limits”) refers to offences (and their corresponding punishment or sentence) that are considered by jurists to have been prescribed by the Quran and the Sunnah of the Prophet Muhammad. Punishments include death (by stoning), flogging and amputation.

It may be recalled that the 1993 Enactment, like its counterpart the Terengganu Syariah Criminal Enactment of 2003, which additionally introduced Qisas (retaliatory) offences and punishment, have been the subject of controversy since their inception. These laws, it was thought by many, were not only unconstitutional; they sought to codify impressions of Islamic criminal law that were not necessarily universally accepted.

Both the Kelantan and the Terengganu Enactments did not come into force, in part because of challenges to their constitutionality and public outcry. In 2003, Zaid Ibrahim was given leave by the Federal Court to challenge the validity of these enactments on the basis that the Legislative Assemblies of Kelantan and Terengganu did not have the competence to enact these laws. I appeared as counsel for Zaid Ibrahim. The Government of Malaysia, through the Attorney General, supported the applications. Though the petitions were ultimately withdrawn, the matter was thought to have ended there. The subject remained within the realm of politics and political brinksmanship.

Or so it was thought. The recent initiative to implement the Kelantan Enactment, albeit with the endorsement of Parliament, calls for a reappraisal of the matter, in particular its constitutionality and lawfulness.

No matter how many times the politicians say otherwise, Malaysia is not an Islamic state from a legal standpoint. The Federal Constitution declares itself the supreme law of the land. All actions by all organs of the State, including the Legislature and the Executive, at the Federal and State levels, must act consistently with that supreme law.  

Legislative power is divided between Parliament and the respective state legislative assemblies. The delineation of legislative powers is prescribed by the Federal Constitution itself, the 9th Schedule of which sets out in three separate lists – the Federal, State and Concurrent Lists – the fields of legislative competence of these lawmaking bodies. Criminal law as the term is commonly understood is within the domain of Parliament. The aim was to allow for the creation of a uniform system of criminal law applicable to all persons in Malaysia, a state of affairs required by the guarantees of equality before the law, equal protection of the law, and the equal protection of life and liberty. 

A minor exception was allowed for. Recognising the place of Islamic personal law in pre-merdeka Malaya (later Malaysia), State legislative assemblies were vested with the power to create Islamic law for personal law purposes. This included the power to establish Islamic courts, and create offences against Islamic precepts. In deference to federal control over matters of criminal law, the Federal Constitution required that sentencing powers for such offences be vested in the Islamic courts by Parliament. As thing stand, a federal statute – Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) – limits the sentencing powers of the shariah courts to imprisonment of three years, with any fine exceeding five thousand ringgit or with whipping exceeding six strokes, or with any combination thereof.

Although we are yet to see what it is that the Private Members Bill is aimed at, it stands to reason that it will seek to amend the 1965 Act in so far as Kelantan is concerned to allow for hudud offences and sentences, with particular reference to the 1993 Enactment. From media reports it would seem that some PAS Members of Parliament are of the view that a simple majority of members present in the Dewan Rakyat would be sufficient to push the bill, and as such hudud in Kelantan, through. I beg to differ.

For one, this viewpoint ignores the fact that the Kelantan legislative assembly was not competent to enact the 1993 Enactment. In creating the offences and prescribing the sentences that it does, it has encroached into the domain of Parliament for having created criminal offences. It has in effect created a parallel system of Islamic criminal law that goes beyond the constitutionally contemplated scheme of personal law offences. This not only violates the legislative provisions of the Federal Constitution, it offends the various guarantees of fundamental liberties accorded by the Federal Constitution to all citizens, including the Muslims of Kelantan. It would wholly undermine the constitutional arrangement of this nation and irreparably damage its basic structure. 

If this is what the Private Members bill seeks to achieve, then it is clearly misconceived. Leave aside concerns about the basic structure, such an effort would be tantamount to an attempt to amend the Federal Constitution. In the ordinary course, this would require a majority comprising two-thirds of all members of both Houses of Parliament. 

As I understand it, private members bills are not treated as matters of priority. I cannot recall when we last heard of one being debated in Parliament, they are pushed to the end of the list and called up only on the completion of government business. Chances are that the proposed bill would never see the light of day.

The political climate is however murky, and extremism appears to be lurking on the fringes. A declining economy, continuous emphasis on race and religion and an ineffective education system have collectively served as an incubator for a reactionary mindset amongst a large number of Malaysians.  I am concerned that desperate ambition may make an alliance with PAS on this subject seem acceptable to UMNO. 

If so, and I hope it not to be the case, then it cannot be emphasised enough that the context make this a matter of great seriousness. The implications are tremendous. 

This is not about Islam, or being anti-Islam. I do not think it open to anyone to suggest that the legal framework of this country has done anything other than to serve and promote the interests of the religion. Muslims in this country have every resource at their disposal to profess and practice their faith. 

Rather, this is about standing by a shared commitment that we undertook in 1957 when we declared ourselves citizens of an independent nation.

Malik Imtiaz Sarwar is a practising lawyer and the Immediate Past President of the National Human Rights Society of Malaysia (HAKAM). This comment is dedicated to the memory of the late Karpal Singh who fearlessly and untiringly defended the basic structure of this nation