Enactment opens up possibility of arbitrary exercise of power and violates basic principles of law, says expert.
The Syariah Criminal Code II 1993 classifies “intidah” and “riddah” as voluntary or deliberate pronouncements or utterances of words that violate a Muslim’s creed, known has aqidah.
These involve challenges to fundamental aspects of the Islamic faith of every Muslim, including Rukun Islam (Pillars of Islam), Rukun Iman (Pillars of Faith) and the distinction between halal and haram.
According to the report, the enactment does not define what would constitute a violation of Rukun Islam or Rukun Iman.
Under the proposed legislation, the immediate punishment for such an offence is imprisonment over a period to be determined by the Syariah Court “for the purpose of repentance.”
However, chillingly it goes on to say that if the offender fails to repent, the punishment may extend to execution.
“Provided that when he repents whether the repentance is done before the death sentence is pronounced or after such pronouncement is carried out, he shall be free of the hudud sentence and his forfeited property shall be returned to him,” the enactment says, as quoted by the report.
A senior lawyer consulted by FMT suggests that the provisions were also against basic legal principles and also opens up the grave possibility of arbitrary exercises of the power by state authorities.
“Firstly, what constitutes a violation of Rukun Islam and Rukun Iman appears not to be properly defined, leaving them open to interpretation,” he suggests.
“Secondly, the fact that the purpose of the punishment – even to the point of execution – is to secure repentance throws open the possibility of a citizen being coerced involuntarily into remaining in the faith,” he adds.
“It is a trite principle of law that admissions and confessions must be voluntarily given – they cannot be extracted by inducement, threat or promise.”
“Thirdly, and most importantly, it is a clear violation of the fundamental constitutional right of freedom of religion.”
The proposed introduction of the enactment by the PAS-led Kelantan State Government has brought two Pakatan Rakyat coalition parties into direct conflict with each other, with the Democratic Action Party (DAP) insisting that the implementation of hudud law was impractical in a multi-racial and multi-religious country and was against the Common Policy Framework agreed upon by the coalition.
Political analysts suggest that one of the reasons why PAS is keen to table the bill was to paper over cracks appearing in its political stranglehold on Kelantan, where many Kelantanese are said to be dissatisfied with the State Government’s recent performance especially in the wake of massive destruction caused by floods at the end of last year.
PAS has long held sway in Kelantan, forming the State Government for 8 years between 1959 and 1977, and again for another 25 years since 1990.