ISLAMIC CRIMINAL LAW: A STUDY ON THE POSSIBILITY OF ITS

IMPLEMENTATION IN MALAYSIA

Shahrul Azwan bin Mohammad Shukri

CHAPTER 1

INTRODUCTION

1.1 Background of Research

With the ongoing impasse on the question of implementation of Islamic Criminal Law, namely the hudud and qisas. This research is made to address to question of whether it can be implemented in Malaysia, to what extent, and how will it affect the legal system.

This research is going to delve into the possibility of implementing Islamic Criminal Law in Malaysia and the possible ways in which it can be implemented. The question on the legality of past laws that have been made such as the Syariah Criminal Code (II) Enactment 1993 in Kelantan and the 1

Terengganu Syariah Criminal Offences (Hudud and Qisas) Enactment 2002 will also be the focus of the 2

research. The research will also highlight the recent amendment to the Kelantan Hudud bill and the possibility of implementing the it through a private bill in Parliament that was raised recently.

The main aim of the research is to determine and analyze the legal hurdles of implementing Islamic Criminal Law in Malaysia without looking at the social and societal aspects of it. The research also aims to see whether these hurdles can be remedied as to allow Islamic Criminal Law to be implemented in Malaysia. Lastly, the research aims to see whether the implementation of Islamic Criminal Law can affect the legal system and if so, how.

En. 12/93.1

Tr. P.U. 10/2003.2

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1.2 Statement of Problem

The peaking rate of criminal activities in Malaysia nowadays raises the concern over the effectiveness of the current criminal laws and criminal justice system. Many have been demanding for Islamic Criminal Law to be implemented due to its stricter nature and its success in curbing crimes in countries that have implemented it like Saudi Arabia. The question that arises is whether Islamic Criminal Law can be implemented within the Malaysian Legal System.

1.3 Objective of Research

Objective of the research is to determine the problems in implementing Islamic Criminal Law in Malaysia. The research will look into the existing laws that pose a threat and act as a barrier to implement Islamic Criminal Law. Afterward, the research will determine any legal remedy and recourse available for the legal hassles and see whether it is possible for Islamic Criminal Law to be implemented within the legal system.

1.4 Research Questions

The research is done to answer question as to the problems with the current criminal law in Malaysia. The rising crime rate has raised the question of whether current criminal law can no longer sustain criminal activities and whether implementing Islamic Criminal Law can help with this. Hence, raising the question of whether the Islamic Criminal Law can be implemented in Malaysia looking at the legal hurdles.

1.5 Research Methodology

Several methods are utilised in getting informations for the research. Such methods are used for collecting and analysing data.

First by library research method. Books, articles, newspapers, research papers and other references are the main source of informations that are essential to this research. Information with regards to what Islamic Criminal Law is, the problems of implementing it and how to remedy them can be found through this method. The sources will be taken from the library of University of Malaya (UM), library of Universiti Islam Antarabangsa Malaysia (UIAM) and internet websites. The aim of this method is to gain as many of information as possible for thorough analysis to answer the questions of this research. The main article that will be referred to is A Study on the Possibility of the Implementation of Hudud Laws in Malaysia by 3

Rafidah binti Abdul Aziz. This article is acquired from the library of UIAM. This article will be used to gain insight into the current researches that have been done to study the possibility of implementing Islamic Criminal Law. The Federal Constitution will also be referred too to see what constitutional provisions might 4

Rafidah binti Abdul Aziz, A Study on The Possibility of the Implementation of Hudud Laws in Malaysia, (Academic Project, Kolej 3Universiti Islam Malaysia, Kuala Lumpur, 2003).

Malaysian Constitution.4

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pose as a barrier in implementing Islamic Criminal Law. Another statute that can help with this is the Syariah Court (Criminal Jurisdiction) Act 1965 . The two Syariah criminal offences statutes from Kelantan and 5

Terengganu will also be studied to determine the possibility of these provisions to be enforced within the current stature. The research will also look into the amended version of the Kelantan enactment.

Second method is by interview. Legal experts and specialists on this topic will be interviewed to gain insights into the matter and expert opinions. Expert will be interviewed to get broader and different views on the matter. These data will then be compared and analyzed to get the best solution to meet the aim of the research. The interviewee is Prof Dr Shad Saleem Faruqi, a Constitutional expert. The interview is aimed to acquire his view on the matter within the constitutional boundaries and also his thoughts on how the legal hurdles can be remedied.

Lastly, a survey is also used to assist the research. Questionnaires are distributed to a number of people, consisting of normal citizens, students, lecturers and lawyers. The questionnaires contain a number of questions on the peoples understanding of Islamic Criminal Law and the possibility of implementing it. The survey is conducted around Kuala Lumpur.

1.6 Literature Review

Several studies, articles and researches were referred to and reviewed for this topic. A Study on the Possibility of the Implementation of Hudud Laws in Malaysia reviewed the issue in a broad way. The paper touches on the legal, social and societal aspect of implementing hudud in Malaysia. This paper outlines the Islamic Criminal Law, namely hudud and qisas, in great details, and how the law was implemented in the time of the Caliphate. The paper later shows the problems in implementing the law here in Malaysia, spanning across social, political and legal aspects. The legal problems that were outlined by the author are with regards to the Constitution and the existing law.

The statutes that are referred to are the Kelantan Criminal Code (II) Enactment 1993 and the Terengganu Syariah Criminal Offence (Hudud and Qisas) Enactment 2002. These statutes are basically similar in nature in terms of the substantive and procedural aspects. These statutes provide for the offences, trial, procedures and punishments of Syariah offences. The research will look at why these statutes are inapplicable until now and how the can be implemented.

The Syariah Courts (Criminal Jurisdiction) Act 1965 was also referred to. This statute provides the jurisdiction of the Syariah Court in criminal matters. This statute provides for several Syariah offences that have been criminalized in Malaysia and their punishments. This statute was referred to in order to see how it becomes a barrier towards implementation of Islamic Criminal Law.

Act 355.5

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1.7 Chapters Summary

Chapter 1: Chapter 1 focuses on the background, issues, questions and objectives of the research. This chapter also includes research methodology, literature review and chapters summary.

Chapter 2: Chapter 2 will include the definition of Islamic Criminal Law and a brief introduction to it. This chapter will also include the current law relating to criminal matters in Malaysia.

Chapter 3: This chapter will go into the question of implementation of Islamic Criminal Law in Malaysia and the problems for its implementation. The chapter will focus on the laws that become barriers for its implementation. This chapter will then include a research on the current laws that have been enacted but are inapplicable. This chapter will underline the Constitutional aspect, and the legal aspect of implementing Islamic Criminal Law. The chapter will look at how the Syariah Courts (Criminal Jurisdiction) Act becomes a barrier to its implementation. Constitutionality of laws that have been made will also be discussed.

Chapter 4: The chapter will mainly focus on how the issues discussed in Chapter 3 can be remedied including amending the Constitution and current laws. This chapter will include views from experts on the matter.

Chapter 5: This chapter will suggest the best of all the possible ways to implement Islamic Criminal Law looking at the socio-political. This chapter will also delve into its effect on the legal system as a whole and give a conclusion to the research.

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CHAPTER 2

DEFINITION

2.1 Definition of Islamic Criminal Law Islamic Criminal Law is criminal law interpreted from the Quran, Sunnah and ijtihad of Islamic jurists. It is 6 7

also referred to as Syariah Criminal Law. Islamic Criminal Law is known to be a form of deterrent law, acting mainly to deter human from committing criminal offences by imposing heavy punishments. The 8

Islamic Criminal Law consists mainly of three types of offences and punishments, hudud, qisas and tazir.

2.1.1 Hudud

Hudud comes from the Arabic word hadd, which means offences and punishments that have been prescribed by God in Quran and Sunnah. It could also be interpreted as barrier. So hudud means a barrier put to prevent human from committing offences. Hudud law is considered rigid in nature and cannot be changed. There are 9

six main offences under hudud which are sariqah (theft), hirabah (robbery), zina (adultery), qazaf (accusation against ones chastity), syurb (drinking liquor) and riddah (apostasy).

Each of these offences are provided for in the Quran and Sunnah and carry different punishments. For theft and robbery, the punishment is amputation of arm. This is based on the Quranic verse:

[As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah . And Allah is Exalted in Might and

Wise. (Al-Maidah, verse 38)

For adultery, married persons will be stoned to death and unmarried persons will be whipped 100 times. This can be based on a Hadith:

In case of married (persons) there is (a punishment) of one hundred lashes and then stoning (to death). And in case of unmarried persons, (the punishment) is one hundred lashes and exile for

one year. [Muslim (17:4192)]

Words and actions of Prophet Muhammad PBUH.6

The process of arriving into a legal decision by referring to the Quran, Sunnah and legal sources.7

Schacht, J, An Introduction to Islamic Law, (Oxford: Clarendon Press, 1964), 1.8

Paizah Haji Ismail, Undang-undang Jenayah Islam, (Selangor: Tradisi Ilmu Sdn Bhd, 2008), 3.9

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Qazaf brings the punishment of 80 times whipping as stated in the Quran:

And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly

disobedient. (An-Nur, verse 4)

For the offence of drinking liquor, the prescribed punishment under hudud is 40 to 80 times whipping based on a Hadith:

The Messenger whipped people who drink liquor 40 strokes, Saidina Abu Bakar whipped 40 strokes and Umar Al-Khattab whipped with 80 strokes. These are all Sunnah of the Prophet and

one which I like the most. (From Ali bin Abi Talib)

Lastly, the punishment for apostasy is death as stated in the Quran:

"They wish that you should disbelieve as they disbelieve, and then you would be equal; therefore take not to yourselves friends of them, until they emigrate in the way of God; then, if they turn their backs, take them, and slay them wherever you find them; take not to yourselves any one of

them as friend or helper. (An-Nisa, verse 89)

There is also a Hadith prescribing death for apostacy:

"...The Prophet said, 'If somebody (a Muslim) discards his religion, kill him.' [Bukhari (52:260)]

2.1.2 Qisas

The second type of offences is qisas. The literal meaning is retaliation or eye for an eye. It allows the family of the victim to retaliate against the offender in the same way the offense was committed against the accused. It is available against the accused for murder, bodily injury or property damage. For example, 10

under qisas, a murdered victims family can choose to have the murderer killed as a. This can be seen in the Quran:

Tahir Wasti, The Application of Islamic Criminal Law in Pakistan: Syariah in Practice, (Brill Academic, 2009), 12-13.10

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z

And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has

revealed - then it is those who are the wrongdoers. (Al-Maidah, verse 45)

One of the main qualities of the Syariah law is one how it is tried in court. Syariah criminal law possesses a much higher standard of proof. For example, in cases of adultery, four credible witnesses are required to actually see the offence being committed in order for it to be substantiated. In court, the burden of proof is beyond any doubt as opposed to beyond reasonable doubt in the civil law. For example, back in the time of the Prophet, hudud was only used once in a case of zina and it was only used after the woman who committed the offence came to the Prophet four times, asking him to punish her. This shows that Islamic Criminal Law is not like any current criminal law in which it requires very high standard of proving and it cannot be used in any instances to punish someone as pleased.

This is because the Islamic Criminal Law is considered fair and was not introduced to punish, but act as a deterrent. This is why muslims believe hudud is obligatory based on a verse for the Quran:

z O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe

in Allah and the Last Day. That is the best [way] and best in result. (An-Nisa, verse 59)

2.1.3 Tazir

The third type of offences is tazir. Offences under tazir are not detailed in the Quran and Sunnah but are determined by the government or court. Tazir can be any offence that is not hudud or qisas. This includes crimes such as possession of guns or drugs. The punishment can be anything ranging from death to imprisonment. If someone cannot be charged under hudud or qisas, he can still be liable under tazir. This type of offences will not be discussed in details in this research because all existing criminal and non-criminal laws that are in force now can be considered tazir including the Penal Code.

2.2 Criminal Law in Malaysia

The definition of law is provided in Article 160(2) of the Federal Constitution. The Criminal Law in 11

Malaysia is something that has been in existence ever since the inception of the country. The main statute in

Malaysian Constitution art 160(2): law includes written law, the common law in so far as it is in operation in the Federation or 11any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.

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force relating to criminal matters is the Penal Code. The Penal Code was based mainly on the Indian Penal 12

Code. The Penal Code basically comprises many types of criminal offences, ranging from normal, 13

traditional crimes such as murder and rape, to modern crimes like electronic crimes. There are also many other specific criminal statutes like the Dangerous Drugs Act 1952, the Anti-Money Laundering and Anti-14

Terrorism Financing Act 2001 and the Sedition Act 1948. The Penal Code contains criminal offences 15 16

under hudud and qisas which are murder, theft and robbery. However, they cannot be considered hudud or 17

qisas because of the different punishments than what are prescribed in Islamic law. For example, although murder in the Penal Code is punishable by death just like qisas, but in Islamic law, there are different considerations to be given, the weight of the murder, the burden of proof, whether the family of the victim wants to have the murderer killed, etc. So these provisions can only be considered tazir. Other offences are absent from the Penal Code but can be found in Syariah offences legislations.

2.3 Syariah Criminal Law in Malaysia

Syariah law is not part of the definition of law as provided in Article 160(2). The Syariah Criminal Law in Malaysia is not complete in the sense that it does not include hudud and qisas nor does it make any homage to Quran or Sunnah. Since Islamic matters is a state matter, each state has its own Syariah offences legislations. The states power to legislate for Islamic matters is not without limit. Although State Government has a fairly wide jurisdiction to legislate for Islamic family and personal matters, however, for criminal matters, the State Government can only legislate Syariah laws in so far as they subscribe to the matters that are under the state purview and within the scope of what is provided under the Syariah Courts (Criminal Jurisdiction) Act. This means that the state cannot legislate laws that touch on matters that are under the jurisdiction of the Federal Government or that might go over and beyond what is allowed by the Act. They are also only enforceable to Muslims and can only be applied in the Syariah court. This was the issues that have been raised with regards to Kelantan and Terengganu hudud enactments. For the Federal Territories, its Syariah offences are governed by the Syariah Criminal Offences (Federal Territories) Act 1997. 18

In general, laws pertaining Syariah offences do include offences under hudud and qisas such as intoxication, sexual intercourse out of wedlock and qazaf. For instance, the Syariah Criminal Offences

Act 574.12

India, Act 45.13

Act 234.14

Act 613.15

Act 15.16

Sections 300, 378 and 390 respectively.17

Act 559.18

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(Federal Territories) Act provides for the offence of consuming intoxicating drinks. In Selangor for 19

example, the Syariah criminal law provides for the offences of zina and qazaf. It can be said that offences 20

under hudud and qisas have always been crimes in Malaysia. However, they cannot be considered to reflect the position of these crimes in the context of Islam. This is because although most of the crimes are provided for under Syariah law, but they do not carry the same punishments as have been provided for in the Quran and Sunnah. Zina for example is punishable by a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes in the Selangors enactment. This is in stark contrast to hudud law that provides for much heavier punishment; stoned to death for married person and whipping of 100 strokes for unmarried person. This is also the case for qazaf where one is only liable for a fine not more than five thousand ringgit and imprisonment not exceeding three years as compared to 80 strokes of whip under hudud. It can clearly be seen that although Syariah law in Malaysia provides for the offences under hudud and qisas but they cannot be considered so because of the different punishment provided. Besides, it must also be noted that Islamic Criminal Law has a much higher standard in determining whether one is guilty in terms of witnesses, proves, etc. Hence, they can only be considered tazir in Malaysia.

Section 19 of Act 559: Intoxicating drinks: 19(1) Any person who in any shop or other public place, consumes any intoxicating drink shall be guilty of an offence and shall

on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.

(2) Any person who makes, sells, offers or exhibits for sale, keeps or buys any intoxicating drink shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Selangor, Syariah Criminal Offences (Selangor) Enactment 1995 (Sel. P.U. 4/96).20

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CHAPTER 3

PROBLEMS

3.1 Malaysia: Islamic or Secular?

In approaching the question of whether Islamic Criminal Law can be implemented in Malaysia, the first question that must be answered is whether Malaysia is an Islamic or a secular state. This must be ascertained because many believe that Syariah law cannot be implemented in a secular state. Many have opined that Malaysia is a Secular state and therefore cannot sustain a Syariah-based law. It must also be noted that Malaysian legal system is one of a common law one, hence making it in theory a secular one. The Federal Constitution is mostly based on the English constitution.

3.1.1 Constitution

To approach this question, the first thing to be referred to is the constitution. Unlike most secular states or most Islamic states that clearly state the status of their state within their constitution, Malaysian Federal Constitution is silent on that aspect. For example, the pre-amble to the Indian constitution states that the state is a secular state. The Malaysian constitution however, contains an article on religion of the Federation. 21 22

This article states that Islam is the religion of the Federation and other religions may be practiced. Article 3(4) however says that the provision that Islam is the religion of the Federation will not override any other Constitutional provision. There has been an ongoing debate over this issue ever since the inception of the country. On one side, people believe that Malaysia is an Islamic state because of Article 3 of the Constitution. On the other hand, others believe to the contrary because the article only states that Islam is the religion of the Federation hence making it only the official religion and nothing more.

3.1.2 Arguments for Secular

From the historical perspective, in the process of making the constitution, the Reid Commission received several important documents containing recommendations from the people in Tanah Melayu. One of the most important one was the Alliance Memorandum. The memorandum was submitted jointly by UMNO, 23

Preamble to the Indian constitution: 21WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Malaysian Constitution art 3.22

April - September 1956.23

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MCA and MIC. In the memorandum, it was clearly specified that they wanted the state to be of secular nature. UMNO has also assured the non-Muslims that Islam was only intended to have symbolic significance and for ceremonial purposes and that the rights of the non-Muslims would be in any way affected as they are guaranteed by Article 11. Other than that, the white paper issued by the British government on the 24 25

formation of the Federation also clearly states that the nature of the state is secular. The first Prime Minister, Tunku Abdul Rahman has also stated that Malaysia is not an Islamic state in a speech in Parliament where 26

he said:

I would like to make it clear that this country is not an Islamic state as it is generally understood; we merely provided that Islam shall be the official religion of the state.

As a matter of fact, in the original Reid draft, there was no provision for Islam to be the religion of the Federation. Islam was to be promoted and regulated by the State governments. It was only included later due to protests by the Malays. Thus it can be said that historically, the constitution and the state were meant to be secular in nature. The judiciary has also been clear in saying that Malaysia is a secular state. In the landmark case of Che Omar Che Soh v PP, the Supreme Court rejected the an argument that because Islam is the 27

religion of the Federation, laws passed by Parliament must be in line with Islamic principles, hence, making death penalty void because it was not according to hudud, or Islamic law. Tun Salleh Abbas, ruled:

However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of the law.

There is also the case of Ainan v Syed Abu Bakar in which the court stated that The Evidence Act applies to 28

the exclusion of the Islamic law. This would not have been the case if Malaysia is in fact an Islamic state. This was of course met with different responds from the public but the idea that Malaysia is a secular state remains famous among legal experts and academicians.

3.1.3 Arguments for Islamic

The idea that Malaysia in an Islamic state, or daulah islamiyyah, can be said to have first emerged during the reign of the Fourth Prime Minister, Tun Dr Mahathir Mohammad. Dr Mahathir in a political speech at 29

K.J.Ratnam, Communalism and the Political Process in Malaya, (Singapore: University of Malaya Press, 1965), 117-126.24

June 1957.25

Parliament, 1 May 1958.26

(1988) 2 MLJ 55.27

[1939] MLJ 209.28

29 September 2001.29

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Gerakan partys conference declared that Malaysia is an Islamic state, effectively reversing his predecessors stand that Malaysia is a secular state. That was the starting of the ongoing debate. His view was supported by many. Many have opined that Malaysia is an Islamic state because of the provision in Article 3 of the Federal Constitution. They believe that Malaysia is governed in accordance with the tenets of the Quran and Sunnah. The fact that Malaysia has Syariah court also adds to that thinking. Furthermore, provision under Article 12(2) that allows the government to allocate funds for the development of Islam is also considered to substantiate the fact that Malaysia is an Islamic state. Dr Mohamed Azam Mohamed Adil for example, opined Malaysia is in fact an Islamic state since Article 11(4) gives power to the government to control the dissemination of other religions to the Muslims. A few cases have also sided with this line of thought. For 30

instance, in the case of Meor Atiqulrahman Ishak v Fatimah Sihi, Article 3(1) means that Islam in Malaysia 31

is an ad-deen, or way of life, and is not just confined to ceremonial purposes. The court also stated that Islam is the highest-positioned religion in Malaysia, above all others. Another case is the case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan where the court states that Article 3(1) puts Islam above other religions 32

and the government has a duty to promote and protect Islam.

Another argument that has been used is how religious-based the constitution is. According to Prof Dr Shad Saleem Faruqi, secular states do not usually have official religion in their constitution and they do not allow government to allocate funds for religious activities like Malaysia. All state Constitutions except

Sarawak also contain provision on Islam as the state religion. The word religion is also used 25 times within the constitution itself. The fact that Islam is a religion of the Federation also permits the promotion of Islamic education and establishment of Islamic institutions, among others. The late Prof Ahmad Ibrahim was also of this opinion. He had stated that the position of Islam provided under Article 3(1) should not only be confined to ceremonial purposes but should become the basis of our law. Many have also argued that the Yang di-Pertuan Agongs oath which provides that the Yang di-Pertuan Agong must always protect Islam 33

must also be taken to mean that Islam holds a special position hence effectively making Malaysia an Islamic state. The Constitution also provides for the existence of Syariah courts. Since 1988, the Syariah courts have been independent of the civil courts in matters pertaining to their exclusive jurisdiction. This of course 34

extends to the fact that Muslims are subjected to Syariah laws in many areas such as family law.

3.1.4 Arguments for Hybrid

There is also a third stream of thoughts in this matter which is the idea that Malaysia is a hybrid of Islamic and secular. Some scholars, for example Prof Dr Shad Saleem Faruqi, has given this thought. Tun Dr

Mohamed Azam Mohamed Adil, Perlembagaan Pertahan Malaysia Negara Islam, Berita Harian, 21 Jun 2014, 28.30

[2000] 5 MLJ 375.31

[2004] 2 MLJ 119.32

Malaysian Constitution art 37.33

Malaysian Constitution art 121(1A).34

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Mahathir has also opined that Malaysia is neither an Islamic nor a secular state, although he had said that Malaysia is an Islamic state during his time as the Prime Minister. They believe that the constitution contains the characters of both Islamic and secular state. However, this thought is not widely supported as many believe that there must be a clear position on this issue. This issue has been widely debated, often as political rhetoric, and will continue to be debated. There is still no clear answer on the matter. Chapter 4 will go into answering this question and see how this affects Malaysias ability to adopt the Islamic Criminal Law.

3.2 The Constitutional Hurdles

One of the main arguments against the implementation of Islamic Criminal Law in Malaysia is that the constitution prevents its implementation. As stated in Article 4 of the Federal Constitution, any law that goes against the constitution is to the extent of inconsistency, void. So the Constitution is the highest law and acts as a benchmark. In the issue of implementation of Islamic Criminal Law, the Constitution must be examined to see to what extent can Islamic Criminal Law be implemented.

3.2.1 Federal - State Division of Powers

The first issue is on the federal and state jurisdictions. Schedule 9 to the Federal Constitution provides for the jurisdictions and powers of the Federal Government and the State Governments. Schedule 9, List II, Paragraph I of the constitution provides that States have authority in:

Creation and punishment of offences by persons professing the religion of Islam, except in regard to matters included in the Federal List.

This means that the State Governments only has powers to make laws with regards to crime only insofar as it does not fall within the Federal jurisdiction. 21 topics of Islamic family law and Islamic offences (not 35

covered under Federal law) are in the States jurisdiction. Looking at Malaysias main criminal law, the 36Penal Code, it can be said that almost all the crimes under hudud and qisas are included under the law. This effectively renders the States powerless in making law dealing with these offences. However, within the current stature, there are certain offences within the Syariah criminal offences laws that are also in the Penal Code. An example is sexual intercourse against the order of nature. Strictly speaking, this offence is under the purview of the Federal power (Penal Code) but some states (eg: Selangor) have this crime as an offence. So States cannot enact law for offences that is under the jurisdiction of the Federal. Some also argue that the constitution only allows the States to make law for offences that are within the precepts of Islam, but murder, theft and robbery are not within that confined area. Hence, these conflicts with the constitution can render the Kelantan and Terengganu hudud enactments unenforceable as it can be considered unconstitutional and ultra vires.

Hudud - test for the Constitution, Shad Saleem Faruqi, 1 May 2014, The Star Online. 11 April 2015 .

Malaysian Constitution Schedule 9 List II Para 1.36

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Looking into the Kelantan Syariah Criminal Code (II) Enactment 1993, the enactment criminalises theft, robbery, sexual intercourse outside of marriage, homosexual acts, unlawful accusations of illicit sex, consuming alcohol and apostasy. This enactment however does not include murder. Kelantan has argued 37

that it wants to implement Islamic Criminal Law in stages, starting with these offences because it knows that murder is under the Penal Code and an overlap with a Federal Law on such serious matter would cause a lot of problems. The punishments for the offences in this Enactment are basically similar to what are provided 38

for in the Quran except for a few punishments which are put at the discretion of the court. Almost all of these offences are under the purview of the Federal law, thus it is not possible for the Enactment to be enforced as the State Government had acted ultra vires in enacting such a law.

3.3 Impracticality

3.3.1 Unenforceable Against non-Muslims

The State List also provides that the Syariah courts only have jurisdiction over Muslims. This would mean that implementing hudud will cause impracticality. The Kelantan State Government has remained stern that their hudud and qisas law will only be imposed on Muslims. However, since the bulk of the Islamic Criminal Law is related to offences that are serious in nature, ie: theft, rape, making it limited only to Muslims will cause a lot of issues. For example, in a case where the witness is a non-Muslim, the Syariah court cannot compel him/her to appear before the court as the law does not apply to non-Muslims. To add to that, it can also be said that even if the non-Muslim consent to appear in the Syariah court, he/she cannot do so as it would bring extra-jurisdictional effect. This would lead to impracticality and could impair the legal system.

3.3.2 State Border

Another issue is on the reach of the law. Since Islamic law is a state law, it will only be operational within the border of the state. As it stands now, it is clear that each state has different set of Syariah law and offences under it. There has always been a lack of uniformity in Syariah law in Malaysia. So, if Islamic Criminal 39

Law is implemented in one state, a person can simply flee out of the border of the state and he will be out of the jurisdiction of the law. This will become a problem of practicality if it is implemented as a state law.

3.3.3 Double Jeopardy

Section 4 of Kelantan Syariah Criminal Code (II) Enactment 1993.37

Azhar Abdullah, member of Kelantan Hudud Technical Committee in Forum Hudud: Menurut Perlembagaan Malaysia & Realiti 38Masyarakat Majmuk , University of Malaya, Kuala Lumpur, 2 Apr. 2015.

Zulkifli Hasan, Isu Undang-Undang Jenayah Islam di Malaysia dan Sejauh Manakah Pelaksanaannya, 24 March 2015 .

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One serious issue that would arise if hudud and qisas are implemented is the issue of double jeopardy. Because the Penal Code contains provisions for murder, theft, robbery, rape, ect., the fact that the states Syariah law also contains provisions for the same offences could lead to double jeopardy. A person could be charged twice for the same offence, in the civil court and in the Syariah court. This goes against Article 7 of the constitution that prevents any criminal law to have double jeopardy effect. This would effectively cause Muslims in the country to be subjected to two different legal systems and could cause serious uncertainties and problems within the legal system.

3.3.4 Against Equality

This would also go against the provision of Article 8 that provides for equality before the law and equal protection of the law. This is because the Muslims will be subjected to a different set of punishments than the non-Muslims and in this case, more severe punishments. For instance, in a case of robbery, a Muslim will be amputated while a non-Muslim will only be imprisoned or fined. This is a clear case of unequal treatment, hence going against the very basic fundamental right enshrined in the constitution which has in many occasions be substantiated as the most important right. 40

3.4 Syariah Courts (Criminal Jurisdiction) Act

Another problem with implementation of Islamic Criminal Law is that Syariah Courts:

shall not have jurisdiction in respect of offences except in so far as conferred by federal law.

This means that Syariah courts only have jurisdiction by virtue of federal law, in this case, the Syariah Courts (Criminal Jurisdiction) Act 1965. This Act imposes limits on punishments that the Syariah courts can give which are maximum three years imprisonment, six strokes of whip and RM 5000 fine. The Syariah courts cannot impose punishments any higher than that. This would of course means that punishments provided under hudud and qisas, such as death, stoning and amputations are not within the power of the Syariah courts. So even if the law can be passed, it cannot enforce those punishments.

Moreover, the prison and places of detention are all under the Federal jurisdiction. The state-run detention centres cannot enforce all the punishments as it would be out of their jurisdiction and powers. Thus, it is clear that hudud and qisas cannot be implemented as the Syariah courts have limitations in exercising its criminal jurisdiction. So it is clear that Islamic Criminal Law cannot be fully implemented without first amending the act to give the Syariah courts such power.

Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors [2012] 1 CLJ 769.40

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CHAPTER 4

SOLUTIONS?

4.1 Malaysia is neither Islamic nor Secular

In answering the question of whether Malaysia can actually implement Islamic Criminal Law, many believes that it is best to first know Malaysia status as a state: Islamic or Secular. This is because they believe that this would determine whether Malaysia can have Islamic Criminal Law within the legal system. Chapter 3 has delved into this issue in great length. In this Chapter, this paper will try to find the best possible stand for this and see how it affects Malaysias ability to implement Islamic Criminal Law.

4.1.1 A Hybrid State

It is clear from the discussion in Chapter 3 that there is no right or wrong answer in approaching this issue. There is no law or legal standing that says Malaysia is an Islamic or a Secular state. It is more of a matter 41

of semantics and point of view at this conjecture. This paper would submit that Malaysia is in fact a hybrid country. In an interview with Prof Shad Saleem Farouqi, he pointed out several arguments in support of this. As stated in the last Chapter, historically, Malaysia was meant to be an Islamic State. 42

However, looking into the Constitution itself, there are many prominent Islamic features seen in it. Islamic state maybe is an aspiration but it is not the Constitutional reality. It is clear at this point that the Constitution is very pluralistic in nature in the sense that it contains both Islamic and Secular features. Malaysia is not a full-fledge Islamic or Secular state.

4.1.2 Theory vs Practice

In theory, we can say that Malaysia is neither. However, looking at the reality of it now, it can be said that Islamisation is gaining steam. This can be said to have started since the early 90s. First, on the supremacy of the Constitution. Although the Constitution clearly has Article 4(1) that says the Constitution is supreme, but many look towards Article 3(1), Islam is the religion of the Federation as the central provision despite the existence of Article 3(4). This can be seen reflected in many cases where civil judges have adopted such a 43

view. Secondly, on the basic fundamental rights of the citizens provided under Part II of the Constitution. This entire chapter has often been read subject to Article 3(1). This is especially so for freedom of religion

Refer to the discussion on this issue in Chapter 4.1.41

Refer to Appendix 3: Interview with Constitutional expert from UiTM, Prof Dr Shad Saleem Farouqi,on 5th of May 2015.42

Malaysian Constitution art 3(4): Nothing in this Article derogates from any other provision of this Constitution. 43

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where Muslims and non-Muslims are being subjected to the provision. For example, in the recent Herald case on the use of the word Allah, the court decided that Article 10 and Article 11 are subject to Article 3. 44 45

Other than that, there is also the issue where State legislative power overrides fundamental rights of Muslims and non-Muslims. For example, putting restrictions on freedom of speech and expression by banning books, preventing foreign Muslim scholars from coming into the country, criminalising cross-dressing and even criminalising the questioning of fatwas. There is also some Syariah Enactments that ban non-Muslims from using certain Arabic or Malay words without linking the banning to the issue of public 46

order or security as provided in Article 10(2) or the ban on proselytization under Article 11(4). Some extreme cases have also shown seizure of dead bodies by religious authorities due to suspicion that the deceased may be a Muslim. There was also the case of Nik Raina , a Muslim bookstore manager who was prosecuted for 47

working at a bookstore that sold a book disapproved by Jabatan Agama Islam Wilayah Persekutuan (JAWI).

Next, on to the question of religious authorities. Although it is clear that the Syariah courts have no jurisdiction over the non-Muslims, many instances have shown otherwise. For example, Syariah courts have been dissolving many non-Muslim marriages when one of the parties converts to Islam. This affects non-Muslims which are clearly not within the purview of the Syariah courts. The same can also be said for Syariah administrative authorities. For examples, JAIS raided a church, the Bible Society of Malaysia and confiscated bibles. They also raided a Hindu temple to stop a wedding. However, even looking at all these factors, it cannot be said that Malaysia is an Islamic state, but it is clear that the Constitution has been used as a tool of protectionism for sanctity of Islam, rightly or wrongly so. For the purpose of this paper, practice and theory will be taken into consideration in seeing whether Islamic Criminal Law can be implemented.

4.1.3 Can a Hybrid State Implement Islamic Criminal Law?

Going back to the question of whether a countrys status affects its ability to implement Islamic Criminal Law, this paper would submit that it would be the case for a Secular state. Secular states like the United States would not implement any form of law that has anything to do with religion or religious practice. However, since Malaysia is a more pluralistic state, the same cannot be said. Malaysia possesses a number of different religious and adat-based laws. For example, there are Islamic family law, Islamic finance, banking and so on. Even the Constitution allows for religious laws and even a religious court (the Syariah courts). So, Malaysia being a hybrid, pluralistic state allows it room for importation and implementation of Islamic Criminal Law. However, this does not mean that full-fledge Islamic Criminal Law, can be implemented. It

Malaysian Constitution art 10(1)(a): Every citizen has the right to freedom of speech and expression.44

Malaysian Constitution art 11(1): Every person has the right to profess and practise his religion and, subject to Clause (4), to 45propagate it.

Refer to Selangor Non-Islamic Religion Enactment 1988 (Control of Propagations Among Muslims).46

Berjaya Books Sdn Bhd, Stephen Fung Wye Keong & Nik Raina binti Nik Abdul Aziz (Pemohon-pemohon) dan Jabatan Agama 47Islam Wilayah Persekutuan, Menteri Dalam Negeri & Menteri Di Jabatan Perdana Menteri (Hal Ehwal Agama) (Responden-responden), Semakan Kehakiman No. R2-25-137-06/2012.

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can only be implemented insofar as the Constitution allows. In conclusion, implementation of Islamic 48

Criminal Law in Malaysia is not out of the question but it must abide by the limitations that have been laid down in the Constitution.

4.2 Remedies

This part of the Chapter will provide some suggestions on how problems that have been discussed in Chapter 3 can be remedied. The paper will look into expert views and take into account the theory and practice as have been discussed in Chapter 4.1.2.

4.2.1 Amending the Constitution

As discussed in previous chapter, the are several issues in the Constitution that act as a barrier towards the implementation of Islamic Criminal Law. The main issue with regards to the Constitution is on the Federal - State division of powers. The problem with the implementation of Islamic Criminal Law in Malaysia is on the issue that it is to be implemented by the State governments. This is outrightly against the powers conferred to the State by the Constitution. 49

One way in which this can be settled is by amending the Constitution itself. The Federal and State lists need to be amended to allow State government to legislate law with regards to Islamic Criminal Law. The amendment must include all the offences under hudud and qisas to be under the purview of the State. This will of course cause overlapping of powers under the Federal and State. However, some have opined that this will not be a problem because currently there are many offences that are both under Penal Code and Syariah enactments in various states. However, this will not settle the problem on a long run. Dr Abdul Aziz Bari believes that the structural framework and machinery for its enforcement such as the police, hospitals and prisons would still become a problem. The Inspector-General of Police, Tan Sri Khalid Abu Bakar had 50

cautioned that police would face difficulty in deciding which law to. Even now, the police have problems 51

for example in cases of child custody where one of the parents converts. So introducing such an amendment to the Constitution would cause more problems.

Another solution is to have a more radical amendment to the Constitution. Firstly, the Federal and State lists must be amended. The amendment must fully transfer the power to enact criminal law to the States. A provision must be included to say that laws made by the States are to be imposed on Muslims and non-Muslims. The Constitution must also be amended to afford more powers to the Syariah courts. Lawyer,

Refer to the discussion on this in Chapter 3.48

Refer to the discussion on this issue in Chapter 3.2.1.49

Sheridan Mahavera, Structural, legal issues in hududs way even if bill passed, say law experts, Malaysian Insider, 27 March 502015 .

Ibid.51

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Norman Fernandez, had said that for hudud to be implemented, the Federal Constitution has to be amended to allow federal agencies to enforce and carry out the law, or to even create new bodies to implement it. 52

This however would still be unable to answerthe problems unless and until all the states in Malaysia enact 53

such a law.

4.2.2 Amending the Syariah Courts (Criminal Jurisdiction) Act

An alternative way for Islamic Criminal Law to be implemented by State governments without amending the Constitution is by amending the Syariah Courts (Criminal Jurisdiction) Act. This Act sets out clear power of the Syariah Courts, namely the punishments it can impose. To implement Islamic Criminal Law, the Syariah courts need to be able to implement more heavy punishments like death, amputation, stoning and whipping to 100 lashes. This is in stark contrast to the current punishments the Syariah courts are allowed to give which are 6 lashes of whip, RM5000 fine and 3 years imprisonment.

This will allocate more power to the Syariah courts to give heavier punishments in

accordance to Islamic Criminal Law. However, this will not settle more pressing issues like

equality, impracticality and inability of the law to be implemented on non-Muslims. This Act will

have to be amended even if all the other issues can be settled by other means because of the

minimality of the punishments.

4.2.3 Amending the Penal Code

The Penal Code, as the countrys highest criminal law, can also be amended in order to implement Islamic Criminal Law. This idea was suggested by Prof Dr Shad Saleem Farouqi. The Federal Government can 54

amend the Penal Code to include all the punishments laid down under Islamic Criminal Law into penal offences. Almost all offences under Islamic Criminal Law is already an offence under the Penal Code; ie murder, rape, theft, robbery.

The Penal Code needs to be amended to change the current punishments into punishments

outlined under hudud and qisas. Other offences not currently in the Penal Code can also be

included. However, the amendment must not use Islamic terminologies such as hudud, zina, etc as it

would then cause it to be vulnerable to be challenged. This is because non-Muslims could then

challenge the law under Article 11 freedom of religion as they are being forcefully subjected to

Ibid.52

Refer to the discussion on this in Chapter 3.3.53

Refer to Appendix 3: Interview with Constitutional expert from UiTM, Prof Dr Shad Saleem Farouqi,on 5th of May 2015.54

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Islamic law. This would settle the issues faced to implement Islamic Criminal Law such as

impracticality, exclusion of non-Muslims, etc as the Penal Code is all-encompassing.

4.2.4 Using Article 76A

Article 76A of the Federal Constitution allows Federal Government to extend its legislative powers to State governments. This means that the Federal Government can extend its legislative power for criminal law in 55

the Federal List to the State governments. In this issue, the Federal Government can extend its power to make law with regards to murder, rape, etc to the State governments. This can be done by introducing an Act in the Parliament. This can be initiated by the Federal Government or through a private members bill like

what the Kelantan State Government is doing now through PAS President, Dato Seri Abdul Hadi Awang in his capacity as member of Parliament for Marang. The State Government would need to get a simple majority in the Parliament to get it passed. Through the bill, they are hoping that the Federal Government would extend their legislative power to Kelantan, hence, making their Hudud Enactment enforceable. Having said that, it is not however without a hitch. Even if the Federal extends its power to the State, it would still not be able to settle the issue that it cannot be enforced on non-Muslims hence rendering it unconstitutional still.

There is another way in which Article 76A can be used. In addition to the above-mentioned method, State governments might also be able to ask the Federal Government to extend its legislative power to make law for the non-Muslims to the State. This way, State governments would then be able to make criminal law on matters under the Federal List and also enforce it on the non-Muslims as well.

Those are some of the avenues in which Islamic Criminal Law might be introduced in Malaysia, either through State law or Federal law. The question on whether these methods can actually be utilised will be discussed in the next chapter.

Malaysian Constitution art 76A(1): It is hereby declared that the power of parliament to make laws with respect to a matter 55enumerated in the Federal List includes power to authorize the Legislatures of the States or any of them, subject to such conditions or restrictions (if any) as parliament may impose, to make laws with respect to the whole or any part of that matter.

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CHAPTER 5

CONCLUSION

Having looked at all the possible avenues in which can be used to introduce Islamic Criminal Law in Malaysia, this paper suggest the best possible way to be utilised looking at the socio-political reality of the country. Firstly, on the question of amending the Constitution. Malaysia upholds supremacy of the Constitution as reflected in Article 4 of the Constitution. Although many instances have shown that the Constitution might not be as supreme as it is supposed to, but in order to amend the Constitution, a two-third majority in the Dewan Rakyat is needed. If anyone was to suggest for the amendment of the Constitution to 56

change the Federal-State list to afford the State governments power to make criminal law, it would need a 57

two-third majority. Looking at the political reality now, no party in the Dewan Rakyat possesses such majority. If Kelantan State Government wishes to amend the Constitution, it would need more than just members of Parliament from the State of Kelantan and it can be said that it would be almost impossible. Even if they actually managed to get a two-third majority, problems, as discussed before, would still arise and the law would still unconstitutional and hence, void. It can be said that this is not a desirable or an effective option at the time being.

If they are to result to a more radical amendment of the Constitution, it would undoubtedly effectively change Malaysia into an Islamic state. Resulting to such amendment would cause more serious problems to arise. Firstly, the State governments would become too powerful and have too big of legislative power at their disposal. This would threaten the system of Federalism and change Malaysia into a country like the United States where powers are based on the States and not the Central Government. It would also be problematic in the sense that all states would have to enact Islamic Criminal Law before it can truly work well or else offenders can just run out of the States jurisdiction. It will also impugn on freedom of religion by forcing Islamic Criminal Law on even the non-Muslims. This method will undoubtedly be impossible to carry out as it is impossible to get two-third members of Parliament to agree to an amendment that would essentially turn Malaysia into an Islamic State. This paper would submit that amending the Constitution will not answer the many resounding problems in implementing Islamic Criminal Law and would in turn cause even more problems. It is also very hard to get the majority to pass such amendments. So with regards to Kelantans effort to implement their Hudud Enactment, it is impossible for them to result to this method.

The next avenue that can be explored is amending the Syariah Courts (Criminal Jurisdiction)

Act. This is basically easier to be carried out. This is because amending an Act only requires a

simple majority in the Parliament. However, this amendment cannot be done on its own. It must 58

More than 148 of the 222 members of Parliament.56

Refer to the discussion on this issue in Chapter 4.2.1.57

More than half of the 222 members of Parliament.58

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come with amendment to the Constitution because it is only on the issue of amount of punishments

the Syariah courts can give. It will still be unable to answer the issues of impracticality of the

Islamic Criminal Law.

Next is amending the Penal Code. This is a very methodological way of implementing Islamic Criminal Law. This way could potentially be workable but it requires political will. The Federal Government would need to get everyones approval before doing so however. This is because the Penal Code would be imposed on everyone. If they did something like this without the approval of the people, there would be severe repercussion. It would be as if they are forcing Islamic Criminal Law onto everyone under the pretence of a normal law. Despite the fact that this could be done, it is not something foreseeable within the near future. Everyone would need to fully understand and embrace Islamic Criminal Law before they can accept it being introduced through the Penal Code but it is nevertheless a workable avenue.

The last method is through the use of Article 76A. This is arguably the most usable method of all and the one that can be done easily. However, it is not right to say that it would settle all issues surrounding the implementation of Islamic Criminal Law and not without problems of its own. The State governments have to work with the Federal Governments in this. They must ask the Federal Government to afford them power to make law with regards to criminal matters provided under the Federal List and make the law enforceable on the non-Muslims. To do this State governments only need a simple majority in the Parliament. This will settle the issue of not having the jurisdiction to make criminal law and imposing it on the non-Muslims. However, several recurring issues like state border and freedom of religion would still be present.

Looking at all this, there is no one right answer in which the Kelantan State Government can use to implement its Syariah Criminal Code (II) Enactment. The best possible way it can take is to bring a private bill in the Parliament to use Article 76A. Then however, they still have to find a workaround in settling the issues that will arise. However, if Kelantan continue with its plan to only implement the law on Muslims, more problems would arise and the law will definitely be challenged in court, putting it at risk of being declared unconstitutional. It is safe to say that Islamic Criminal Law in its fullest form can only be implemented in a full-fledged Islamic State and the only way in which Malaysia can become an Islamic State is through a Constitutional and institutional reform. Looking at the political and social reality now, it is impossible to see it happen in the near foreseeable future.

It is hard to discern what effect implementing Islamic Criminal Law would have in Malaysia but it can be said that if it is implemented in its current form and understanding, it would not bring good and desired results. From the research conducted through the questionnaires, it can be seen that Malaysians, 59

Muslims and non-Muslims lack the understanding of what Islamic Criminal Law is. Most of them, be it those with legal background or those without, do not agree with Kelantans move to implement Islamic Criminal Law. Most of them also agreed that implementing Islamic Criminal Law would be against the Constitution.

Refer Appendix 1: Sample questionnaire and Appendix 2: Survey results.59

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From this, it can be said that Malaysians are not ready for full Islamic Criminal Law to be implemented. Furthermore, with all the foreseeable practical and technical difficulties, implementing it now would cause a lot of issues. The law will be challenged for its Constitutionality, the law enforcer would have difficulty in enforcing the law, there will be uncertainty in the law and the entire legal system might collapse from all

these. Although we already have a dual legal system, civil and Syariah, but Syariah is only on a few matters like family that are not under the purview of the civil system. If Islamic Criminal Law is to be introduced, it might cause these two systems to clash with each other, causing chaos in the running of the country.

It is clear now that Islamic Criminal Law is very much possible to be implemented in Malaysia but a lot of modifications need to be made to the Constitution and the legal system as a whole. However, shoehorning it into the legal system is not the right way. The main problem is because Malaysia is a multi-cultural multi-racial state and it must be treated as such. The best way to go about implementing Islamic Criminal Law is by educating the masses. Islamic Criminal Law must be taught to children is school, there must be seminars and forums on it conducted by the government. The best way would be to plan its implementation carefully and have a referendum to know whether the people want it to be implemented or not. The issue must not continue to be politicized. There must be political will on both divides to impart the understanding on the people and to try and implement it.

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REFERENCES

ACTS Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (Act 613) Dangerous Drugs Act 1952 (Act 234) Penal Code (Act 574) Sedition Act 1948 (Act 15) Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) Syariah Criminal Offences (Federal Territories) Act 1997 (Act 559)

BOOKS Paizah Haji Ismail, Undang-undang Jenayah Islam, (Selangor: Tradisi Ilmu Sdn Bhd, 2008). Schacht, J., An Introduction to Islamic Law, (Oxford: Clarendon Press, 1964).

CASES Ainan v Syed Abu Bakar [1939] MLJ 209 Berjaya Books Sdn Bhd, Stephen Fung Wye Keong & Nik Raina binti Nik Abdul Aziz (Pemohon-pemohon) dan Jabatan Agama Islam Wilayah Persekutuan, Menteri Dalam Negeri & Menteri Di Jabatan Perdana Menteri (Hal Ehwal Agama) (Responden-responden), Semakan Kehakiman No. R2-25-137-06/2012. Che Omar Che Soh v PP (1988) 2 MLJ 55 Lina Joy v Majlis Agama Islam Wilayah Persekutuan [2004] 2 MLJ 119 Meor Atiqulrahman Ishak v Fatimah Sihi [2000] 5 MLJ 375 Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors [2012] 1 CLJ 769

CONSTITUTIONS Malaysian Constitution Indian Constitution

DISSERTATIONS K.J.Ratnam, Communalism and the Political Process in Malaya, (Singapore: University of Malaya Press, 1965). Rafidah binti Abdul Aziz, A Study on The Possibility of the Implementation of Hudud Laws in Malaysia, (Academic Project, Kolej Universiti Islam Malaysia, Kuala Lumpur, 2003). Tahir Wasti, The Application of Islamic Criminal Law in Pakistan: Syariah in Practice, (Brill Academic, 2009). FORUM Azhar Abdullah, member of Kelantan Hudud Technical Committee in Forum Hudud: Menurut Perlembagaan Malaysia & Realiti Masyarakat Majmuk , University of Malaya, Kuala Lumpur, 2 Apr. 2015.

INTERVIEW !24

Interview with Constitutional expert from UiTM, Prof Dr Shad Saleem Farouqi on 5th of may 2015.

ONLINE ARTICLES Hudud - test for the Constitution, Shad Saleem Faruqi, 1 May 2014, The Star Online. 11 April 2015 . Sheridan Mahavera, Structural, legal issues in hududs way even if bill passed, say law experts, Malaysian Insider, 27 March 2015 . Zulkifli Hasan, Isu Undang-Undang Jenayah Islam di Malaysia dan Sejauh Manakah Pelaksanaannya, 24 March 2015 .

PARLIAMENT Parliamentary Sitting, Dewan Rakyat, 1 May 1958.

STATE ENACTMENTS Kelantan Syariah Criminal Code (II) Enactment 1993 (En. 12/93) Selangor Non-Islamic Religion Enactment 1988 (Control of Propagations Among Muslims) (Sel. P.U. 1/98) Selangor Syariah Criminal Offences (Selangor) Enactment 1995 (Sel. P.U. 4/96) Terengganu Syariah Criminal Offences (Hudud and Qisas) Enactment 2002 (Tr. P.U. 10/2003)

WRITTEN ARTICLE Mohamed Azam Mohamed Adil, Perlembagaan Pertahan Malaysia Negara Islam, Berita Harian, 21 Jun 2014, 28.

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