KOTA BARU, March 19 ― Despite claims that hudud will only apply to Muslims in the state, the Kelantan government has retained three dubious clauses in the amended Shariah Criminal Code (1993) that could subject non-Muslims to the contentious Islamic penal law.
A check by Malay Mail Online showed that the Bill retained Clause 56, 57 and 58 under the “General” supplementary that provides for hudud and ta'zir (discretionary) punishments for anyone who conspires, plots, abets or assists in the act of a crime.
Clause 58 also provides that those found to have assisted in a sariqah (theft) offence would also be subject to the hudud punishment of amputation.
Clause 56 states that “if the act of crime is perpetrated by a result of or caused by abetment, assistance, plotting or malicious planning, everyone involved in the planning, plotting, assisting or partaking in the malicious plan to perpetuate an act of crime shall be punished by imprisonment under ta'zir of not more than 10 years.”
Clause 57 states that “shall an act of crime be perpetrated by a group of individuals in order to realise a malicious plan then every of those individuals involved shall be deemed as guilty as the main perpetrator and shall be punished with imprisonment under ta'zir of not more than ten years.”
Clause 58 states that “any person found guilty of committing an offence of sariqah (theft) in a group, each of the person shall be punished by hudud (amputation) as if each person were the sole perpetrator of the act.”
Law scholars had previously voiced concern over the three clauses when the original Shariah Criminal Code was first introduced and passed in the Kelantan State Legislative Assembly in 1993.
Many noted that the provisions did not explain if hudud would remain exclusively applied to Muslims in the event that a criminal act was perpetrated by both a Muslim and a non-Muslim.
One of them, Mohammad Hashim Kamali,renowned former law professor at the Islamic University of Malaysia, in his critique of the Hudud Bill back in 1993 wrote that the three clauses raised doubts if Kelantan would stick to its pledge to apply the Shariah Criminal Code only on Muslims.
“Questions tend to arise as to the state of the laws when both Muslims and non-Muslims are involved in a case of, say adultery or theft.
“It would seem that the choice of law that is envisaged in Clause 56 would be discriminatory and illogical,” Muhammad wrote in his essay entitled Punishment in Islamic Law: A Critique on the Hudud Bill In Kelantan.
He also cited in his essay the concerns expressed by several non-Muslim academics at the time - that Malaysia's minorities fear that an ill-informed and conservative reading of Islam as reflected by the PAS leadership at the time would result in unfair application of Islamic laws on them.
This, Mohamad concluded, subjects hudud's ability to mete out justice, the guiding principle of the law itself, to great scrutiny.
“The Kelantan government obviously had no choice but to make the laws only for the Muslims of Kelantan, but by the same token, one might say that this provision tends to indulge in a doubtful application of hudud.”
Former Prime Minister Tun Dr Mahathir Mohamad, a critic of hudud, had repeatedly raised the same question in his criticism of PAS's hudud ambition, arguing that the unequal application of hudud betrayed the fundamental Islamic teachings of equal justice.
“If two people, a Muslim and a non-Muslim, committed a crime the Muslim would be punished severely like having his arm chopped off while the non-Muslim will be let off with a fine or short imprisonment.
“Is that justice? That is not what Islam wants,” he had said when asked about the hudud debacle recently.
Dr Mahathir had used the same argument when he vowed to stop the Kelantan government from attempting to roll out the Islamic penal law in 1994, when the mentri besar then, the late Datuk Nik Aziz Nik Mat pleaded support from the federal government to amend the Federal Constitution to allow hudud to be carried out.
Current Opposition lawmakers from the DAP had also pointed to the same discrepancy in the Bill when justifying their opposition to the move.
Puchong MP and lawyer Gobind Singh Deo highlighted the same problems in dismissing PAS's repeated claims that hudud would not affect Kelantan's minorities.
“You think it doesn't affect you, trust me it does,” he said.
The Kelantan government tabled the Shariah Criminal Code (II) (1993) Bill yesterday despite strong objections from PAS’s Pakatan Rakyat allies, DAP and PKR.
The Kelantan state assembly will vote the Bill today and if passed, a PAS federal lawmaker will then aim to seek amendments to the Federal Constitution to allow Kelantan to carry out hudud.