A Malaysian legal expert is of the opinion that the debate surrounding Kelantan’s new hudud law is a futile exercise, as PAS, the party advocating its adoption and implementation, simply doesn’t have the numbers in Parliament to pass the necessary amendments.
Universiti Malaya’s Professor Gurdial Singh Nijar said that a simple majority vote will not be enough to implement the controversial Islamic law.
Out of the 222 members of Parliament, PAS only has 21, while the other Malay-Muslim party, UMNO, has 88 representatives. The other predominantly Malay-Muslim party, PKR, has 29 (including jailed Opposition leader Anwar Ibrahim, who cannot vote while he is in Sungai Buloh Prison).
“The hudud bill cannot be passed with simple majority as the bill creates new offences and procedures in respect of criminal law and the administration of justice,” Gurdial told Astro Awani‘s Sathesh Raj.
In order to obtain the two-thirds majority required to pass the necessary amendments allowing hudud into enforceable law, PAS would need to secure at least 148 votes in Parliament – a feat Gurdial is skeptical the party would be able to pull off.
He said that in its current form, Kelantan’s hudud law is unconstitutional, as it ran counter to the provisions already enshrined in the Federal Constitution.
“This means that the creation of offences that are in the federal list or dealt with by federal law are in federal hands. The Constitution explicitly says that states cannot create and punish offences with regard to matters included in the Federal list,” he said.
Offences that fall under the new hudud laws include theft, rape, and robbery, all of which are already covered in provisions of the Federal Constitution’s Penal Code.
“States cannot make laws on these criminal matters even though these are said to be also crimes against Islam. The 1993 Kelantan and Terengganu hudud laws are clearly unconstitutional,” he added.
Gurdial also said that any law passed after Merdeka Day that is inconsistent with the Constitution would be void to the extent of its inconsistency, and that certain “fundamental constructs” of the Constitution – such as the institution of Parliament, or of the judiciary – cannot be altered.
He finally questioned the manner in which hudud law would be enforced, even if it were to be passed into law on a federal level.
“Even if the bill is passed how will it be implemented? Powers of the police are under the federal list not the state list.”
This means that the Kelantan state government, were it to want a hudud law to be enforced, could not compel the Royal Malaysian Police to carry it out, as the PDRM serves under the auspices of the Federal Government.
On March 16, the PAS-majority Kelantan state legislative assembly passed into law amendments to its Syariah Criminal Code II 1993, allowing for Islamic hudud punishments for criminal offences – including death for apostates from Islam, and amputations for thieves.
All 12 of the UMNO representatives in the state legislature’s opposition sided with PAS’s bill; however, PAS’s own partners in Pakatan Rakyat, DAP and PKR, have come out objecting to the law, with DAP cutting ties with PAS president Abdul Hadi Awang over what it calls Hadi’s betrayal of the Pakata Common Policy Framework.
Senior UMNO members in the Cabinet, such as de facto Law Minister Nancy Shukri and her predecessor, Tourism Minister Nazri Aziz, have stated their extreme doubt over whether hudud law could ever be implemented anywhere in Malaysia.
Hadi is expected to table a Private Members’ Bill in Parliament to pass amendments to the Constitution that would allow hudud law to be enforced, not only in Kelantan, but potentially across Malaysia.
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