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| Tun Abdul Hamid presenting his paper at IAIS public talk on hudud law |
The planned Brunei-style Shariah laws, with provisions to introduce hudud, could be implemented under Malaysia’s federal law which will also impact non-Muslims, said former Chief Justice of Malaysia Tun Abdul Hamid Mohamad.
In a lengthy speech yesterday on Brunei’s recent move to introduce the Shariah Penal Code 2013, Abdul Hamid said there is no “constitutional impediment” for criminal offences under the Penal Code to be made punishable with hudud, a view that is expected to be hotly contested by some constitutional experts.
“Parliament may choose whatever punishments to be provided for criminal offences, including punishments according to Shariah. If done that way, they may be extended to Muslims and non-Muslims alike.
“Criminal law is under the jurisdiction of the civil courts. Civil courts have jurisdiction over Muslims and non-Muslims alike.
“For Parliament to make such law, no amendment to the Constitution is required and the bill can be passed by a simple majority. This situation is comparable to the law on Islamic banking and finance and takaful,” he said.
Abdul Hamid, who retired as the nation’s top judge in October 2008, made the remarks in his 12-page speech entitled Implementaion of hudud in Brunei: Differrence between Brunei and Malaysia at a public lecture organised by the International Institute of Advanced Islamic Studies (IAIS) in Petaling Jaya recently. The full speech is available on his website at www.tunabdulhamid. my.
Abdul Hamid, who is also a sitting member of Brunei’s Shariah and civil law harmonising committee, was commenting on the move by Brunei, the oil-rich absolute monarchy sandwiched between Sabah and Sarawak, that had on Oct 22, 2013, gazetted the Shariah penal code with a view to introduce the hudud and qisas punishments in the country. The order has yet to be brought into force.
He made the above remarks as to whether such a move could be made in Malaysia purely from a “legal perspective neutrally and professionally like a judge delivering a judgment”.
“Many people think that since the offences are hudud and qisas offences according to Shariah and ‘Islamic law’ which is under the jurisdiction of the State, therefore State Legislature may make such law. At the most, they are partially right. In Malaysia, any law made must be consistent with the Constitution,” he said.
He noted that some of those offences lie within federal and civil courts’ jurisdiction, hence, if they are made state law, clearly they are unconstitutional, null and void.
“We often hear people saying that the law will be made applicable to Muslims only. Again, this is only partially right,” he said, citing three reasons.
“Criminal law is a public law. The offences are offences against the state, not just against the victim. That is why it is the public prosecutor who prosecutes, on behalf of the State,” he said.
When drawing his conclusion on the move, he said: “In my view, any law, no matter how good it is, if it is implemented without proper preparation, without taking into account the relevant factors or implemented inefficiently or unprofessionally, may lead to injustice. Good intention alone is not enough. Technical know-how, expertise and discipline are among the factors essential for the success of the implementation.”
[THE MALAYSIAN RESERVE, 14 Feb 2014]
SOME NEWS/MATERIAL RELATED TO THE ABOVE STORY:
1. Government Gazette from Brunei's Attorney General 's Chamber. Bil S 69.
2. The Malay version for Perintah Kanun Hukum Jenayah Syariah, 2013
3.. PRESS RELEASE: Syariah Criminal Law Officiated
Prime Minister's Office and Ministry of Religious Affairs, Negara Brunei Darussalam held Majlis Ilmu 2013 which was one of the main events in conjunction with the 67th birthday celebration of His Majesty Paduka Seri Baginda Sultan Haji Hassanal Bolkiah Mu'izzaddin Waddaulah ibni Al-Marhum Sultan Haji Omar 'Ali Saifuddien Sa'adul Khairi Waddien, Sultan and Yang Di-Pertuan of Brunei Darussalam. The event was held for 3 consecutive days on 22 October 2013 to 24 October 2013. The event took place at the International Convention Centre (ICC) Berakas, Negara Brunei Darussalam.
I am most grateful to Allah the Almighty, because today's "Majlis Ilmu", that is to say Knowledge Convention, in conjunction with my birthday celebrations is to include historic events, pertaining to the Syariah Penal Code. With the blessings of Allah, this legislation will be gazetted today, the 22nd of October, 2013, and will come into force six months hereafter in phases.
5. Pelita Brunei report on the gazetting of the Brunei Shariah law
'Akta Perinta Kanun Hukuman Jenayah: sya'riah mula digazetkan 22 Oktober 2013'
