On 19 March 2015, the Kelantan State Assembly passed its Syariah Criminal Code (II) 1993 (Amendment 2015) [the Enactment]. Especially for the sensitive and hyper-sensitive, this post is not a critique of any religion or person. As a lawyer, I am duty-bound to shed some light from a perspective of the law. You may or may not agree with me.
The Enactment is another piece of State legislation on Kelantan’s criminal justice system. Just like any other, it is not ‘divine law’. Some may find its basis or inspiration from religious texts; but the Kelantan State Assemblypersons are mere mortals who debated and passed the Enactment. It would be a mistake to equate State Assemblypersons as beings who are on a higher plane than us, or more than beings who are human.
The fact is that the Enactment must be treated like any other piece of legislation. It must also stand the searching scrutiny of lawyers and academics who would wish to test it for constitutionality. Hudud ‘branding’ by interested parties especially politicians from both sides of the divide does not and cannot elevate what is essentially a State law to something higher than the Federal Constitution. The Constitution is the highest law of the land.
Do not dismiss hudud entirely. Under the Federal Constitution, there are certain areas that only Federal Parliament may legislate (Federal List) and other areas that only State Legislative Assemblies may legislate (State List). These areas are stated in the Ninth Schedule of the Constitution.
Religion is under the State List. States may create offences (against the precepts of Islam) and punishment of those offences by Muslims. Therefore, Kelantan has a right to legislate such offences if all the conditions prescribed under the Constitution are fulfilled.
What Kelantan cannot do is to legislate criminal law that comes under the Federal List. Only Parliament may make criminal law. Should Kelantan legislate on criminal law, the particular State Enactment would be unconstitutional for want of legislative competency.
Some parts of the Enactment may be unconstitutional. The difficult question to answer is what are ‘offences against the precepts of Islam’ (State List) and what are ‘offences under criminal law’ (Federal List)?
The Federal Court has not answered this broad question. It has, and legitimately so, dealt with it on a case-by-case basis. For example, in Sulaiman Takrib it was said that where federal law (including pre-Independence laws) has created an offence under the Federal List, States cannot make similar offences. Theft and robbery are already offences under the Penal Code falling under ‘criminal law’ in the Federal List. Given this, the States cannot create sariqah (theft) and hirabah (robbery) offences under the State List.
Other offences such as zina (adultery), qazaf (accusation of zina which cannot be proved by four witnesses), syurb (consuming liquor or intoxicants), irtadad or riddad (apostasy) are not offences under federal law. They are arguably offences against the precepts of Islam and within the legislative competency of the States.
On the above alone, there are some offences in the Kelantan Enactment that may be unconstitutional.
Whether the Enactment’s offences and punishments are consistent with Articles 5 and 8 of the Constitution and international human rights standards is an argument to be taken on another day.