Parliament only needs simple majority to pass hudud, says ex-judge

A girl wearing a hijab waits at the Shah Alam stadium during celebrations of Maulidur Rasul, or the birth of Prophet Muhammad, outside Kuala Lumpur January 14, 2014. — Reuters pic
A girl wearing a hijab waits at the Shah Alam stadium during celebrations of Maulidur Rasul, or the birth of Prophet Muhammad, outside Kuala Lumpur January 14, 2014. — Reuters pic

KUALA LUMPUR, Feb 11 — Only a simple majority is needed for Parliament to enact Islamic criminal laws that will also affect non-Muslims nationwide, Malaysia’s retired chief justice said today.

Tun Abdul Hamid Mohamad also said Parliament can also choose to amend the existing Penal Code to include penalties prescribed by Islamic law for criminal offences, which would impact both Muslims and non-Muslims, as debate continues over the federal enforcement of hudud.

“There is no constitutional impediment to do so as a federal law. Parliament may choose whatever punishments to be provided for criminal offences, including punishments according to shariah,” he said during a public talk on hudud at Universiti Malaya’s International Institute of Advanced Islamic Studies here.

“For Parliament to make such law, no amendment to the constitution is required and the Bill could be passed by a simple majority,” he added.

The 13-party Barisan Nasional (BN) coalition currently has a simple majority in the 222-member Parliament with 133 seats, while the opposition Pakatan Rakyat (PR) bloc controls 89 seats.

The former top judge compared the situation to the implementation of the law on Islamic banking, finance, and insurance.

Abdul Hamid, who was chief justice from November 2007 to October 2008, however stressed that the punishments must apply to all, since making it applicable to Muslims only would render them unconstitutional, null and void.

He further said an exemption for non-Muslims would be contrary to Article 8 of the Federal Constitution, which he said speaks against discrimination against citizens on the ground of religion.

He observed that there may be hiccups to implementing hudud as there were also offences that did not fall under the Penal Code but are already provided for in the Syariah Criminal Offences Enactments of each state, such as adultery.

“To use the hudud punishment for them, there is a legal impediment, not by the constitution but by federal law which limits the punishments which could be legislated by the state legislature,” said Abdul Hamid.

He was referring to the Syariah Courts (Criminal Jurisdiction) Act 1965, which would need to be amended if the states wished to roll out hudud punishment.

The former judge observed that there was at least one hudud offence, Muslim apostasy, that cannot be tried in Malaysia whether as federal or state law as it would be unconstitutional.

In Islamic jurisprudence, hudud covers crimes such as theft, robbery, adultery, rape, sodomy, making unproven accusations of adultery, causing physical hurt, drinking intoxicants, apostasy, and acts contrary to Islamic belief.

Shariah law is generally confined to Muslims, but can extend to non-Muslims if they are involved in aiding or abetting an offence committed by a Muslim.

At its annual congress in November last year, PAS revisited its bid to revise federal law to enable the nationwide enforcement of the strict Islamic penal code, which it had buried previously in the run-up to Election 2013.

The Islamist party had introduced hudud in Kelantan and Terengganu, but has not been able to enforce them due to the conflict with federal constitution.

Its political foe Umno had capitalised on PAS’ failure to enforce hudud in a bid to shore up support among the country’s dominant Malay-Muslim voters, claiming the party had strayed from its plan to form an Islamic state.

But both Umno and PAS face strong resistance from their coalition partners over rolling out hudud.

The BN’s Chinese component, MCA, and PAS’ allies from DAP and PKR have argued that hudud will turn Malaysia into an Islamic theocracy and dilute the country’s image as a multi-religious nation.