The Kelantan Syariah Criminal Code Enactment II is unconstitutional

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Karpal Singh

The insistence by Kelantan Menteri Besar, Datuk Ahmad Yakob, that Kelantan will go ahead for PAS to move a private member’s bill in Parliament ‘to seek a declaration that the Kelantan Syariah Criminal Code Enactment II, or hudud, can be implemented in the state’ is ill-advised. He adds that the state government will use the next six months to carry out an information campaign so that no party would doubt the benefit of implementing syariah laws and that this was the perfect time to table the bill. He adds further that it was timely to implement syariah laws for the peace and welfare of all. [NST 06.04.2014 page 24].

Kelantan UMNO has promptly jumped on the bandwagon with Kelantan UMNO liaison committee chairman, Datuk Seri Mustapa Mohamad, publicly proclaiming that UMNO members of parliament from Kelantan will support the private member’s bill to be tabled by the Kelantan government to seek the declaration, adding that it was their duty as Muslims to support the implementation of syariah in the state.

It is obvious, both PAS and UMNO are seeking to derive political mileage from the implementation of hudud in Kelantan despite knowing fully well that under the law the legislation of the Kelantan Syariah Criminal Code Enactment II was clearly unconstitutional. The Kelantan State Assembly did not have the power to have passed the enactment.

I have said time and again, and I repeat, Parliament cannot approve for implementation, by way of a private member’s bill, a state law which is unconstitutional.

In any event, the Supreme Court, the country’s highest court then, has as far back as 1988 in Che Omar B Che Soh v PP through a strong five-man bench headed by Salleh Abas (the then LP) ruled that the country was governed by secular law which makes Malaysia a secular state as only a secular state can be ruled by secular law. It would be incongruous to accept hudud, which is Islamic law in a secular state. This case has not been overruled by the Federal Court and has obviously stood the test of time. From the ruling of the Supreme Court, it must follow that hudud, which is Islamic law cannot be reconciled with the country being ruled by secular law through a judicial pronouncement by the highest court in the land. Even if Parliament passes hudud as criminal law applicable to the whole country or to a specified state like Kelantan, it would mean Parliament has acted unconstitutionally as the passing of that law would destroy one of the basic structures of the constitution, namely that Malaysia was a secular state as it was ruled by secular law. It must be emphasized, in Malaysia, it is the Federal Constitution which is supreme, and not Parliament unlike the position in the United Kingdom.

In view of the constitutional constraints and further in view of hudud being unsuitable for the present time and age and the multi-racial and multi-religious structure of society in Malaysia, the 38 DAP Members of Parliament cannot, in the national interest, support any proposed move by PAS to initiate a futile private member’s bill to provide for the introduction of hudud in Kelantan.