KUALA LUMPUR, Feb 12 — A private member’s Bill to enhance Shariah punishments will enable excessive sentences for religious offences that mostly victimless and non-violent, Datuk Dr Shad Saleem Faruqi said today.
The constitutional expert said the Bill by PAS president Datuk Seri Abdul Hadi Awang will also allow penalties for Shariah offences that are harsher than even punishments for heavier crimes in the civil system.
“Punishment must be proportionate to the offence committed,” the University of Malaya’s emeritus professor of law said in a forum on understanding the Islamic penal code of hudud organised by Tan Sri Tengku Razaleigh Hamzah.
“You’re going to have penalties of 100 lashes, RM100,000 fine, or 30 years’ jail for offences that are in some cases are purely victimless crimes. Some of Shariah crimes are victimless crimes — a person drinks, doesn’t pray, doesn’t fast — there is no clear harm to public order and national security.
“In Criminal Procedure Code, Penal Code, the offences are much lesser for much bigger offences,” Shad said.
According to Shad, the First Class Magistrate courts should be the benchmark for the punitive powers that Shariah courts may have. Currently, the Shariah courts’ powers are equivalent to the Second Class Magistrate courts.
Shad also said that the Shariah Court (Criminal Jurisdiction) Act 1965 also known as Act 355, which Hadi’s Bill aims to amend, is itself unconstitutional as it provides for penalties, but not the broad categories of offences that fall under the Shariah courts’ jurisdiction.
The law expert said the Act gives a “blank cheque” to state courts to enact punishments for any crime seen as against the precepts of Islam, adding that this has since been abused by state authorities.
“If they really want to follow the Constitution, first step should be that all Shariah enactments must either be repealed, amended, or made in line with the Constitution. Only then can the punishment powers of Shariah courts be enhanced,” he said.
Shad said Shariah laws are currently inconsistent and differ from state to state, and that there should be effort to unify these, which he noted is missing from Hadi’s Bill.
He also pointed out that, in Islam, there is a distinction between sin and crime, and not every sin must be criminalised as it is being done by the Shariah enactments in the country.
Other panelists in the forum today included Universiti Sains Malaysia political science professor Dr Ahmad Fauzi Abdul Hamid and Perlis mufti Datuk Dr Mohd Asri Zainul Abidin.
The latest version of Hadi’s Bill aims to increase the punishments that Shariah courts can mete out from three years’ jail, six strokes of the cane and an RM5,000 fine to 30 years’ imprisonment, 100 strokes, and an RM100,000 fine.
Islamist party PAS is organising a rally in support of the Bill for Saturday, February 18 at Padang Merbok in the country’s capital.
