Hadi’s bill: Maximum sentence open to abuse, says ex-judge

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KUALA LUMPUR: PAS president Abdul Hadi Awang’s amended motion to enhance shariah punishments is constitutional but the request for maximum penalty is too harsh, says a retired judge.

Mohamad Ariff Md Yusof said there was no justification in the Marang MP’s proposal in his private members’ bill to mete out sentences of up to 30 years’ jail, RM100,000 fine, and 100 strokes of light caning.

“I suggest civil society and politicians ask the promoters of the motion to justify why there must be maximum punishment,” the retired Court of Appeal judge said.

He added that the current maximum RM5,000 fine was already considered high when meted out by a shariah court.

Ariff said this when delivering a public lecture titled “Amendments to Shariah Courts (Criminal Jurisdiction) Act 1965 – Constitutional and Practical” at the Universiti Malaya Law Faculty yesterday.

Currently, the shariah criminal punishment is capped at three years’ prison term, RM5,000 fine, and six strokes of the cane.

Ariff said Hadi’s motion was legal as the punishments would only be enforced on Muslims in the country for going against “the precepts of Islam”.

However, Ariff said the maximum punishment proposal had an adverse effect as each state would look into an offence differently.

“You increase it, but this could lead to all types of abuses,” he said citing the case of Shah Alam MP Khalid Samad who was fined RM2,900 for giving a religious talk without credential in Kapar.

The maximum fine for the offence in Selangor is RM3,000.

Khalid, of Parti Amanah Negara, now risks being barred from contesting in the next general election (GE14) as the constitution states that an MP is disqualified if he is convicted and imprisoned not less than one year or fined not less than RM2,000.

Ariff also agreed with the assertion by many that Hadi’s amended version to enhance shariah punishments would allow for the implementation of hudud through the back door in Kelantan and Terengganu.

Ariff said the Kelantan Syariah Criminal Code II 1993 (as amended in 2015) provided for eight hudud offences, three of which could be implemented if the maximum punishment sought was approved by Parliament.

The three offences are qazaf, al-lian (for husband) and syurb.

He said the offence of qazaf (false accusation of adultery) and al-lian (false accusation of adultery by husband, on oath, against his wife) carried a punishment of 80 lashes.

Those found guilty of syurb (consumption of liquor or intoxicating drinks) could be whipped a minimum of 40 times and a maximum of 80 times.

The PAS-led Terengganu legislative assembly in 2002 also approved the Shariah Criminal Offence (Hudud and Qisas) Enactment, but its implementation was put on hold.

Saying that Kelantan and Terengganu’s shariah enactments required strict evidential procedure when it came to criminal offences, Ariff questioned the need for its implementation when the offences were difficult to enforce.

“That is why Muslim scholars like Tariq Ramadan called for a moratorium to implement shariah criminal law and instead focus on other noble values promoted in Islam,” he said.

Ariff said non-Muslims had the right to debate Hadi’s proposal as it would cause ripples in the economy.

“Public perception is important. The business of non-Muslims could suffer if they live in a hudud like environment,” he added.