Council of Rulers opposes amendments needed to enforce hudud

The Conference of Rulers has rejected the proposed amendments to Act 355, a federal law that the Kelantan PAS government wants to change in order to enforce hudud, or the Islamic penal code, in the state, according to sources.

The proposal to amend the Shariah Courts (Criminal Jurisdiction) Act 1965 was rejected during a meeting on March 11, attended by all Malay rulers or their representatives, sources said.

The rulers' decision means the Federal government will no longer move to have the Act amended in Parliament, as was originally intended under a roadmap by the joint federal-state Hudud Technical Committee.

The technical committee had intended for the Conference of Rulers to decide on the proposed changes to Act 355 after the Kelantan state legislative assembly passes the Shariah Criminal Code II Enactment 1993 (amendment 2015). The legislative body did so unanimously on March 19.

According to the committee’s roadmap, once the Conference of Rulers gave their greenlight, the technical committee was to to present the proposed amendments to the Cabinet.

A federal minister would then table the bill to amend the act in Parliament.

But without the Malay rulers' stamp of approval, the federal government is now unable to table such a bill in Parliament to amend Act 355, which currently limits the scope of punishment meted out by the Shariah court.

A source from the Kelantan state government who is a member of the technical committee told The Malaysian Insider the committee had previously agreed that a minister would table the bill to amend Act 355 in Parliament during the June sitting.

“According to the existing roadmap, in December 2014 (later moved to March 2015 due to the floods), the Shariah Criminal Code II Enactment 1993 (Amendment 2015) would be tabled in the Kelantan state assembly.

“On March 11, the proposed amendments to Act 355 would be presented to the Conference of Rulers before it is brought to the Cabinet. In June, a minister will table the amendments to Act 355,” said a source.

The Malay rulers' decision, which has effectively scuttled the technical committee's roadmap, is believed to have prompted PAS president Datuk Seri Hadi Awang's move to personally table changes to Act 355 through a private member's bill instead.

Hadi filed a notice with Parliament on March 18 to that effect.

Act 355 limits the Shariah courts to imposing a maximum penalty of RM5,000 in fine, three years in jail and six strokes of the rotan.

This prevents the Shariah courts from carrying out the penalties detailed in Kelantan’s Shariah Criminal Code II Enactment 1993 (Amendment 2015), which includes 100 strokes of the rotan for those who have sex out of wedlock, and 80 strokes for those who consume alcohol or falsely accuse others of committing illicit sex.

If tabled in Parliament, Hadi’s private member's bill only needs the support of 112 MPs, or a simple majority, for it to be passed if the full house of 222 MPs are sitting.

Otherwise, the bill can also be passed by the majority of MPs sitting at the time it comes up for a vote.

There is now the question as to whether Hadi's private member's bill will see the light of day, given that government matters usually take priority on the Dewan Rakyat's agenda. The law minister, Nancy Shukri, has said that the bill will likely not be raised in the current parliamentary sitting which ends on April 9.

There are 136 Muslim MPs in Parliament, but all 15 of the Muslim PKR MPs and the two DAP MPs are unlikely to vote in favour of the bill, given their respective party’s stand on the matter.

Barisan Nasional (BN) has yet to issue an official statement in support of hudud, while BN Back Benchers Club chief Tan Sri Shahrir Samad said the 87 Muslim Umno MPs and 10 Muslim PBB MPs may vote based on their conscience.

However, Umno MP Datuk Nur Jazlan has already stated he will not support the enforcement of hudud, while seven PAS MPs loyal to PasMA – the pro-PR pressure group within the Islamist party – may reject the bill. 

Umno's Padang Rengas MP Datuk Seri Nazri Aziz became the first minister from the party to dismiss attempts to implement hudud in Malaysia, saying such talk was "stupid" as it could never legally happen.

There is another legal view that amending Act 355 alone is insufficient to enforce hudud, and that Article  76A (1) of the Federal Constitution must also be amended.

This constitutional provision deals with the federal legislature's power to make laws, and the power granted to state legislatures to make laws subject to limitations imposed by Parliament.

These include the power to make laws on punishments for criminal offences, which according to the constitution, is under federal jurisdiction.

PAS, in defending the hudud enactment, has also said that it would be applied to all Muslims, including to members of royalty, according to Pasir MAS MP and party central committee member Nik Abduh Nik Aziz.

- TMI