Thursday, June 9, 2016

Bar: Disingenuous to say Hadi’s bill not about hudud

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PAS president Abdul Hadi Awang’s Private Member’s Bill to amend Syariah Court (Criminal Jurisdiction) Act 1965 (of Act 355) is about implementation of hudud in Kelantan, and attempts to say otherwise is bunk, said the Malaysian Bar.

Bar president Steven Thiru said the Bill sought to make two amendments to Act 355, which would give the syariah court power to mete out heavier sentences, except for the death penalty.

This means the courts will have “unlimited power to impose all other hudud punishments”, he said in a statement.

“It is therefore rather disingenuous for some quarters to suggest that the bill does not touch upon hudud offences in any manner,” he said.

According to the Kelantan syariah enactment, hudud offences are zina (adultery or sex outside marriage), qazaf (false accusation of zina), syrub (alcohol consumption) and irtidad (apostasy).
They are punishable with whipping ranging from 40 to 100 lashes.
PAS insists that Hadi’s bill is merely to “uplift” the syariah court, while Umno leaders say it is unrelated to the hudud.

The government had on May 26 tabled a motion in the Dewan Rakyat to fast-track Hadi’s bill ahead of government business to amend Act 355.

However, Hadi requested that his bill be tabled in the next sessions in October as it was already the last day of the second session of the Dewan Rakyat.

The two amendments sought are:
  • to widen the syariah court’s jurisdiction to include criminal matters as listed in the state list in the ninth schedule of the Federal Constitution; and
  • to introduce Section 2A, which removes restrictions to punishments imposed by the syariah court, allowing the meting out of heavier penalties except for the death penalty.
The syariah court can now only impose sentences of no more than six strokes of the rotan, longer than three years' imprisonment and no more than RM5,000 fine.

PAS said it was observing due process by tabling the bill for debate in the House as required in the Federal Constitution.

However, Thiru said the bill did not pass the proportionality requirement of Article 8 of the Federal Constitution.

“Legislative action that leads to arbitrariness or allows for excessive measures would fail this test of proportionality.

“It is improbable that the open-ended and unrestricted (save for the death penalty) sentencing power that Section 2A purports to confer on syariah courts will meet the proportionality requirement, thus rendering the constitutionality of Section 2A questionable,” he said.

“Let us not allow unfounded statements or dubious actions divide us, and distract or divert us from focusing on the challenges to the rule of law that remain extant.”

~ Malaysiakini

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