KUALA LUMPUR, March 19 ― Despite views that  hudud is unconstitutional, lawyers confirmed today that PAS would not need to amend the Federal Constitution to enforce the strict Islamic criminal law in Kelantan.

Lawyer Syahredzan Johan said that the PAS-ruled Kelantan government was now limited by a 1965 law which bars the Shariah Courts from enforcing harsher punishments under hudud - such as amputation of limbs for thefts or death for apostasy.

Under the Shariah Courts (Criminal Jurisdiction) Act 1965, the Shariah courts can only impose a maximum three year jail term, a maximum RM5,000 fine or a maximum six strokes of whipping.

“So what PAS seem to want to do is to amend the Act to allow Kelantan to carry out these punishments. And that requires a simple majority and does not require an amendment to the Federal Constitution,” Syahredzan told Malay Mail Online when contacted.

In Parliament, only a simple majority or 112 MPs in the Dewan Rakyat are needed for a federal law or amendments to it to be passed; while a two-thirds majority or 148 out of the 222 MPs are needed for the Federal Constitution to be amended.

But Syahredzan noted that other states could easily follow Kelantan’s footsteps to similarly enact hudud if PAS is successful in amending the 1965 law.

“But once the Act is amended, and all other Shariah Courts also can mete out punishments such as amputation and death, then what’s to stop other State Legislative Assemblies from enacting similar laws?

“Because it is a federal law that they are amending,” the civil rights lawyer added, referring to the 1965 federal law that applies to the Shariah courts nationwide.

Critics of PAS’ plans to enforce hudud in Kelantan have previously pointed out that the Federal Constitution’s Ninth Schedule states that criminal laws fall under the jurisdiction of the federal government, instead of the state governments’ jurisdictions.

But Firdaus Husni, who chairs the Bar Council’s constitutional law committee, similarly said PAS would not need to seek an amendment of the Federal Constitution to enforce hudud.

Firdaus said the Federal Constitution empowers the federal government and Parliament to extend their lawmaking powers to state governments.

“Under Article 76A (1), the Federal Government can extend its powers to legislate the matters in Federal List, it can extend it to any state,” she told Malay Mail Online when contacted today.

The lawyer also cited the Constitution’s Article 80 (4), where Parliament may confer powers on state authorities in the administration of specified parts of federal law.

For PAS, all it has to do now is to amend the Shariah Courts (Criminal Jurisdiction) Act 1965, as the punishments listed in the Kelantan state law on hudud goes beyond the limits in the 1965 law.

But even if PAS manages to remove the legal hurdles to enforce hudud in Kelantan, Firdaus said the Islamic penal code can be challenged for breaching the Federal Constitution.

“Yes it can be enforced, but having said that once it has been enforced, it can still be challenged on grounds of constitutionality,” she said, citing Articles 7, 8 and 3.

Article 7 protects Malaysians from repeated trials, while Article 8 guarantees equality before the law and equal protection of the law.

Malaysia’s Penal Code covers criminal offences that applies to everyone in the country, while Kelantan’s hudud state enactment covers criminal offences for Muslims only.

Critics have argued that Muslims in Kelantan would be subject to both the Penal Code and the hudud law, as well as pointing out that there could be discrimination with different sets of criminal laws with varying degree of punishments and rules being applied to Muslims and non-Muslims.

Earlier today, the Kelantan state assembly approved a bill to amend its state law on hudud, Kelantan Syariah Criminal Code Enactment II.

PAS now plans to put forward two private members’ bills in Parliament ― one will seek approval for unconventional punishments, some of which are for offences already covered in the Penal Code. The other seeks to empower Shariah courts to mete out the unconventional punishments.

Like Kelantan, Terengganu also has a state enactment on hudud that it has yet to enforce due to legal roadblocks.