PAS’ amendment Bill, if passed, will allow Syariah law to
encroach on the civil criminal justice system.
This will result in unequal punishments for Muslims and
non-Muslims, triggering a constitutional issue, said a prominent legal expert.
Emeritus Prof Datuk Dr Shad Saleem Faruqi said the guarantee
of equality before the law under Article 8 of the Constitution would be
challenged as a Muslim and a non-Muslim charged for the same crime would be
subjected to different punishments.
Dr Shad acknowledged that while unequal treatment is
permissible in the matter of personal laws under Article 8 (5), the hudud laws
in question here do not fall under the same category as they were criminal
laws.
“Theft, rape murder, and incest are not personal laws so I
think this law will be unconstitutional under Article 8.
“So even if Parliament passes it, it would still raise
constitutional issues. Therefore the law can still be challenged under the
Constitution,” he said.
According to Dr Shad, the Bill is seeking to amend the
Syariah Courts (Criminal Jurisdiction) Act to allow greater punishments in
reference to the Syariah Criminal Enactment Code of 1993 through which the
Kelantan government had sought to impose hudud penalties.
Dr Shad said that even if the law was passed by Parliament,
it does not mean that the Syariah law will supersede the Federal Constitution.
“Nothing can supersede the Federal Constitution. The Federal
Constitution itself allows for some exceptions, you have to come within those
exceptions but otherwise the Constitution must prevail,” said Dr Shad.
He said questions of constitutionality will never cease even
if the Private Members Bill on hudud is passed in Parliament.
Meanwhile, Dr Shad said that the Conference of Rulers could
still object to the amendment after Parliament passes it while the law could
also be challenged as being unconstitutional at the Federal Court.
In what is called cooperative federalism, Dr Shad said that
it is also entirely possible for the Federal Government to transfer some of its
powers to the Kelantan government if it was in support of hudud law.
“There is another procedure under Article 76(A) whereby the
Federal Government can transfer some of its powers to the state government.
“But even if that is so, constitutional issues cannot be
surpassed,” he said.
According to Dr Shad, the Bill would require 112 votes to be
passed and not a two-thirds majority as it is not an amendment to the
Constitution itself but an amendment to an Act of Parliament.
Source -The Star Online
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