According to Tun Abdul Hamid Mohamad, a former Chief Justice of Malaysia, in 1993, when the Pas-controlled Kelantan State Legislative Assembly, mainly for political reasons, passed the Syariah Criminal Code (II) Enactment 1993 (Kelantan), that was/is unconstitutional for that reason the Kelantan enactment contained, inter alia, criminal law offences under the federal jurisdiction.
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... the Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355) was legislated in 1965. The act provided that the Syariah Court’s jurisdiction “shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding six months or with any fine exceeding one thousand dollars or with both”. That was the limit of the jurisdiction of the Syariah Court. In brief: six months’ imprisonment, RM1,000 fine or both.
The act was amended in 1984 by the Muslim Courts (Criminal Jurisdiction) (Amendment) Act 1984 (Act A612). The amendment act provides that the Syariah Court’s jurisdiction “shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding RM5,000 or with whipping exceeding six strokes or with any combination thereof”. In brief, the limit was increased to three years’ imprisonment, fine ofRM5,000, six strokes or any combination thereof.
It lay dormant for 20 years. Then, Brunei gazetted its Syariah Penal Code Order 2013 (the Order) with the view, in brief, to introduce hudud and qisas in the country. (Until today, the part on hudud had not been brought into force yet.) That woke Pas up. It then dug up its old enactment and began to think of how to implement it. To cut the story short, it decided to move a private bill in Parliament to amend Act 355.
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How dare the state attempt to usurp federal supremacy!
Besides that, the Kelantan Enactment infringes Act 355. And what is Act 355?
By now you all probably know but nonetheless let me repeat what Tun Abdul Hamid Mohamad has written, namely:
... the Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355) was legislated in 1965. The act provided that the Syariah Court’s jurisdiction “shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding six months or with any fine exceeding one thousand dollars or with both”. That was the limit of the jurisdiction of the Syariah Court. In brief: six months’ imprisonment, RM1,000 fine or both.
The act was amended in 1984 by the Muslim Courts (Criminal Jurisdiction) (Amendment) Act 1984 (Act A612). The amendment act provides that the Syariah Court’s jurisdiction “shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding RM5,000 or with whipping exceeding six strokes or with any combination thereof”. In brief, the limit was increased to three years’ imprisonment, fine ofRM5,000, six strokes or any combination thereof.
It lay dormant for 20 years. Then, Brunei gazetted its Syariah Penal Code Order 2013 (the Order) with the view, in brief, to introduce hudud and qisas in the country. (Until today, the part on hudud had not been brought into force yet.) That woke Pas up. It then dug up its old enactment and began to think of how to implement it. To cut the story short, it decided to move a private bill in Parliament to amend Act 355.
To cut the story short, PAS f**ked up in 1993 by passing the Syariah Criminal Code (II) Enactment 1993 (Kelantan), that was/is unconstitutional for that reason the Kelantan enactment contained, inter alia, criminal law offences under the federal jurisdiction, ...
... so to avoid that same mistake of passing unconstitutional enactment, it attempts to have Act 355 (a federal la) amended to give its syariah courts more muscle, namely to punish more.
In essence, what had been passed by the Kelantan DUN in 1993 vis-a-vis the Syariah Criminal Code was UNCONSTITUTIONAL, that is, null and void.
And that's why PAS now seeks to amend the federal laws rather than uselessly the Kelantan State laws.
Now, under Pak Haji Hadi Awang's private member bill, if passed by parliament (with its various processes), apart from increased fines and increased imprisonment for offenders of Islamic laws, the approve amendments will give Kelantan syariah courts the power to increase whipping to 100 strokes.
I will discuss more of what Tun Abdul Hamid Mohamad has informed us, but for this post, suffice to say that when Act 355 was legislated in 1965 there was NO whipping permitted for the syariah courts to award.
Then in 1984 under Act A612, Act 355 was amended to allow the syariah courts to whip offenders up to 6 strokes.
Now Pak Haji Hadi Awang wants to amend Act 355 to allow the syariah courts to whip offenders up to 100 strokes.
To recapitulate, whipping by syariah courts went from 0 stroke (zero, thus not allowed) to 6 strokes and if Pak Haji's Bill is approved, 100 strokes.
Looks like PAS loves whipping Muslims kau kau.
The civil courts also have whipping, which is just as draconian.
In today's world, we should no longer allow both the civil courts and syariah courts to whip criminals, and especially in the syariah courts, even of offenders of religious laws concerning morality as interpreted by ulama.
Nor should we condone award of capital punishment allowed to and by the civil courts.
It's time to step into a modern world of values preached by god, that of compassion, humanity and mercy.
Amin.