Jan 20, 2017

Will amended Act 355 affect non-muslims?

Will amended Act 355 affect non-muslims?

Will amended Act 355 affect non-muslims?

The following are questions that I have been frequently asked. I shall deal with them one by one:

Question: Can the state introduce hudud after the amendment?

Answer: Yes, partly. The state may introduce hudud punishment for offences under Para. 1, List II (State List) Ninth Schedule, Federal Constitution, for example, adultery, accusing a person of committing adultery and consuming intoxicating drinks. These offences are in the State List. In fact, they are offences under the state law. All that the state has to do is for the state legislative assembly (SLA) to amend the law to provide hudud punishment for the offences, subject to the limit set by the amended Act 355.

However, it must be remembered that the offences and punishments are only applicable to Muslims. In other words, non-Muslims cannot be charged for the offences. 

Q: Could there be an overlapping of jurisdiction between the syariah and civil courts?

A: No, there will not be any overlapping of jurisdiction between the two courts. This is because the Constitution clearly divides what lies under the federal (civil court) jurisdiction and the state (syariah court) jurisdiction.

Criminal law is under the federal (civil court) jurisdiction. Offences under the state (syariah court) jurisdiction are those against the precepts of Islam “except in regard to matters included in the Federal List” (that is the wording of the Constitution).

Let us say that the SLA of a state makes the offence of theft (an offence under the Penal Code) an offence in the state law and provides hudud punishment for it — that provision is unconstitutional because that offence is (punishable by) criminal law under the federal (civil court) jurisdiction.

Q: If such a law is made, which court shall have the power to determine whether it is constitutional or not? (This is my own question.)

Q: It is said that “any amendment to Act 355 will create an unfair situation because there will be two sets of laws to which a person is subjected to”. What is your comment?

A: This is what I call “mistaken fear”. You wrongly perceive something and you are afraid of it. Non-Muslims are not subjected to offences under the State List.

So, they cannot be said to be subjected to two sets of laws. That situation only applies to Muslims. It is not caused by an amendment to Act 355. It is because they are subjected to offences under the State List, whether Act 355 is amended or not.

Q: Can Parliament introduce hudud punishments? (This is my own question.)

A: Yes, only by a simple majority, applicable to both Muslims and non-Muslims, and the law is criminal law administered by the civil court. Surprised? Let me explain.

Criminal law is a federal matter. Parliament has the power to create criminal law offences. The major hudud offences, for example, murder, rape, theft and robbery, are criminal law offences under the Penal Code. Parliament has the power to provide any punishment, including those similar to the “hudud punishments”, to those offences. Parliament only needs to amend the Penal Code to do so by a simple majority. Act 355 cannot prevent Parliament from doing so.

One act of Parliament cannot prevent another act of Parliament being passed. Otherwise you cannot amend a law, once made. In any event, Act 355 only applies to the syariah court.

But, remember that if Parliament makes such a law, it will be applicable to Muslims and non-Muslims alike. In other words, in that case, even non-Muslims will be subjected to the punishment (by whatever name you call it) because the offences are criminal law offences, no matter what the punishment is.

So, if non-Muslims do not want hudud punishment, they should watch what Parliament does, whether it will introduce a Hudud Act, as in Pakistan, or amend the Penal Code to provide for punishments similar to hudud, without even mentioning the word hudud, a Malaysian ingenuity. This is what non-Muslims should be afraid of, not an amendment to Act 355. The former is the real “ghost”, not the latter.

Q: Can Parliament create offences with hudud punishments applicable to Muslims only? (This is my own question.)

A: No. Criminal law is a general law that is applicable to all, Muslims and non-Muslims alike. Parliament cannot create criminal law offences applicable to Muslims only because it will be discriminatory on ground only of religion, contrary to Article 8. Offences under the State List are different. The Constitution specifically provides that those offences are applicable only to Muslims. In other words, they are an exception to the general rule, and Article 8 does not apply in respect of those offences.

Q: Will amendment to Act 355 affect non-Muslims?

A: No. The amendment is only to increase the jurisdiction of the syariah court, and the syariah court has no jurisdiction over non-Muslims.

Tun Abdul Hamid Mohamadis
Former Chief Justice of Malaysia

Columnist  : NST

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