PETALING JAYA: Abdul Hadi Awang’s private member’s bill to enhance shariah punishments must obtain the consent of the Conference of Rulers, a retired Federal Court judge said.
Gopal Sri Ram said the Malay rulers were the head of the Islamic religion in their respective states.
“Legal consent of the Conference of Rulers must be obtained where any issue of administration and implementation of Islamic legislation is involved.
“Enhancing punishment is part of administration of Islamic law,” he said in response to a debate over whether the consent of the rulers was required before this matter could be debated in Parliament.
Yesterday, Hadi, the Marang MP, was allowed to introduce the bill but the debate was deferred to the next sitting.
Sri Ram said it would be unconstitutional to debate and pass the bill if the green light was not obtained from the rulers.
“Just because the government in the past did not obtain consent from the rulers, it does not mean they can be by-passed. Two wrongs do not make a right,” he added.
Hadi is seeking to obtain approval from Parliament to raise the punishment to a maximum of 30 years’ jail, RM100,000 fine, and 100 strokes of light caning for shariah criminal offences.
At present, punishment under the Syariah Courts (Criminal Jurisdiction) Act 1965, or better known as Act 355, is limited to a maximum three-year prison term, RM5,000 fine, and six strokes of the cane.
Sri Ram said the amended Kelantan Shariah Criminal Code passed by the state legislative assembly in 2015 was itself unconstitutional.
He said Islamic criminal law was not within the jurisdiction of the states.
“The state has no power to impose punishment on criminal law. It is unconstitutional as only Parliament can determine offences and the measure of punishment,” he said.
Sri Ram said states could only administer Islamic personal and private laws, such as divorce and succession.
He said any citizen could move the Federal Court under Articles 4(3) and 4(4) to challenge the constitutionality of the 2015 state enactment.
He said the attempt to amend Act 355 in order to implement shariah criminal law in Kelantan went against the equality principle in the Federal Constitution.
He said there could not be two parallel criminal justice systems for Malaysians.
“Every Malaysian has the right to express his concern. RU355 is not the exclusive domain of Hadi Awang. If he thinks so, then he is constitutionally wrong,” he added.
There were two attempts to challenge the validity of the Kelantan enactment but these were dismissed by the courts on grounds that they had been filed prematurely before the law had been passed by the state assembly.
On another occasion, the Federal Court threw out a leave application as four applicants failed to prove they were Muslims and would be affected by the enactment.