6 October 2011


Hudud as a right and democratic manifestation — Zulqarnain Lukman

OCT 6 — Art Harun in his most recent article has provided us with some substantial grounds that have further enlightened us on the debate pertaining to the obstacles in the Constitution for hudud implementation.
The central contention in his submission revolved around the detailed provisions under the Ninth Schedule of the Federal Constitution, particularly the state list, which sought to flesh out the details as envisaged under Articles 74 and 77. He was essentially trying to defend the position taken by the Bar Council that was criticised by Professor Dr Abdul Aziz Bari.
It appears now that the opposition to hudud on the basis that the Constitution is secular and thus unable to accommodate God-inspired laws is getting shaky and untenable. So is the opposition founded on equality among citizens and double jeopardy fears. This appears to be the case when one reads the Art Harun’s article in entirety whose emphasis was jurisdiction.
Art Harun argued that the states have no power to implement hudud as this is not provided for under their legislative list: civil and criminal law, among others, fall under the federal list. Although he may be the first to expound the provisions there is nothing new in these lines of argument.
But his excessive reliance on a pedantic approach of reading the Constitution has indirectly led to the question mark over the legality of the syariah criminal system. It has to be said this is not something that would be tolerated: should the question come to its door the court will do its best to save the system from collapsing. We have to accept that the existing system has been around for too long and to let it go would lead to disastrous effects on the nation particularly as the Muslims are in the majority. Like in other legal systems, policy decisions would eventually rule the day.
Art Harun seems to think that criminal law — which includes power to create offences — is completely under federal hands. This is not quite the case for we have two different sets of criminal law and criminal systems; one that is primarily centred around the Penal Code and the Criminal Procedure Code, and the other being the syariah criminal system which comes under the jurisdiction of the states. The Federal Court was just trying to uphold the system in its decision in Sulaiman Takrib vs Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) & Other Cases [2009] 2 CLJ 54.
He also thinks that Islamic law revolves around personal matters which, among others, deal with family matters such as marriage, divorce and so on. This is obviously something that has its roots in the perception and world view of religion in the past, especially during British rule and in its immediate aftermath after we gained independence in 1957. But this has changed and this shift is evident for the past three decades or so.
In fact some support may be found in the state list itself when the Constitution states, among others, that the state would have power to deal with “....Islamic law and personal law and family law of persons professing the religion of Islam.....”. It also provides that the state will have power to deal with “...the determination of Islamic law and doctrine.....”
The Constitution is silent on the meaning of Islam, Islamic doctrine and so on. And given this lacuna reference has to be made to the religion itself. This being the case Islam in the Constitution is not as narrow as claimed by the Supreme Court in Che Omar bin Che Soh vs PP [1988] 2 MLJ 55. For one thing a constitution should not allow itself to hang on the past especially when the Reid Commission itself did not say anything on the matter.
A constitution, in order for it to survive and deliver the goods, must move with the times and adjust itself to the realities. This can be done through various means; the most popular being through formal amendments and judicial interpretation.
As it appears hudud in Kelantan is a popular demand. As a democratic constitution the Federal Constitution must be read and implemented along this line. This does not mean we are going into a mob democracy. For one thing this time Kelantan has made it clear that hudud that it has in mind is just for the Muslims in the state. This can be made clear in the enactment itself as well as in the relevant federal legislations such as the Penal Code. 
We have seen many examples whereby the division of powers as laid down in the Constitution is not strictly followed. The placing of Islamic banking dispute in the civil court rather than the syariah court is one good example. And we have seen how various Islamic bodies and institutions being set up by the federal governments.
Some have correctly said that our Constitution is not cast in stone. It has to respond to the popular will, especially when it has been expressed in an open and transparent.
* Dr Zulqarnain Lukman is an advocate and solicitor of the High Court of Malaya

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