Hadi’s Bill opens doors for disproportionate punishments, constitutional expert says

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Source: The Malay Mail Online

Professor Datuk Shad Saleem Faruqi speaks at the forum 'Sejauh mana anda memahami hudud' at the PAUM Club House in Kuala Lumpur February 12, 2017. — Picture by Boo Su-Lyn

Professor Datuk Shad Saleem Faruqi speaks at the forum ‘Sejauh mana anda memahami hudud’ at the PAUM Club House in Kuala Lumpur February 12, 2017. — Picture by Boo Su-Lyn

KUALA LUMPUR, Feb 12 — A private member’s Bill to enhance Shariah punishments will enable excessive sentences for religious offences that mostly victimless and non-violent, Datuk Dr Shad Saleem Faruqi said today.

The constitutional expert said the Bill by PAS president Datuk Seri Abdul Hadi Awang will also allow penalties for Shariah offences that are harsher than even punishments for heavier crimes in the civil system.

“Punishment must be proportionate to the offence committed,” the University of Malaya’s emeritus professor of law said in a forum on understanding the Islamic penal code of hudud organised by Tan Sri Tengku Razaleigh Hamzah.

“You’re going to have penalties of 100 lashes, RM100,000 fine, or 30 years’ jail for offences that are in some cases are purely victimless crimes. Some of Shariah crimes are victimless crimes — a person drinks, doesn’t pray, doesn’t fast — there is no clear harm to public order and national security.

“In Criminal Procedure Code, Penal Code, the offences are much lesser for much bigger offences,” Shad said.

According to Shad, the First Class Magistrate courts should be the benchmark for the punitive powers that Shariah courts may have. Currently, the Shariah courts’ powers are equivalent to the Second Class Magistrate courts.

Shad also said that the Shariah Court (Criminal Jurisdiction) Act 1965 also known as Act 355, which Hadi’s Bill aims to amend, is itself unconstitutional as it provides for penalties, but not the broad categories of offences that fall under the Shariah courts’ jurisdiction.

The law expert said the Act gives a “blank cheque” to state courts to enact punishments for any crime seen as against the precepts of Islam, adding that this has since been abused by state authorities.

“If they really want to follow the Constitution, first step should be that all Shariah enactments must either be repealed, amended, or made in line with the Constitution. Only then can the punishment powers of Shariah courts be enhanced,” he said.

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