States that enact religious laws based on Islam are not in breach of the Federal Constitution, as they have the power to pass such legislation. Problems, however, arise after they do so.

Former Lord President Mohd Salleh Abas said the legislating of the hudud and qisas codes by Kelantan and Terengganu was done in accordance to Article 11 of the Constitution, which allows all states the right to manage religious affairs.

This means the states can adhere to their religious duties which, among others, include enacting hudud and qisas laws as required by the Quran and traditions of Prophet Muhammad.

The Jertih state assembly representative said this in an introductory speech at a three-hour dialogue on hudud and qisas in Petaling Jaya last Sunday.

The event, which drew some 400 participants, was organised by the Malaysian Islamic Society of North America (Misna) Alumni, an NGO which aims to spread the teaching and philosophy of Islam.

Article 76A

Mohd Salleh conceded, however, that the constitution does not allow the states to implement their own laws as that power is vested with the federal government.

"The Islamic Criminal Enactment of hudud and qisas in the states will remain as laws but cannot be implemented. It has become a body of legislation, but without power because it has no engine to run it," he said.

"And the power to install the engine is not with state governments but with the federal (authorities)."

He said the federation should consider exercising its discretion under Article 76A of the Constitution to allow the Islamic codes to be implemented in the states, considering that a majority of the people there have supported PAS in enacting the laws.

"For the federation to deny the implementation of the Islamic laws would mean that there is no freedom of religion to the people in Kelantan and Terengganu," he said.

"If Parliament does not allow the laws to be implemented, (then) it has failed in its duty as the trustee of legislation powers given to them by the states as stated in the Constitution."

He pointed out that the punishment for offences does not contradict federal criminal laws because the latter does not provide for offences like zina (illicit sex), drinking liquor and qazaf (seditious accusation of zina ).

'Appropriate punishments'

On another issue, Mohd Salleh said the punishments provided by hudud and qisas are appropriate for the gravity and seriousness of the offences.

He said offences like zina , drinking liquor, qazaf , theft, robbery and apostasy are serious in Islam and that punishments are prescribed by the Quran, which no Muslim can dispute.

The reason why liberals view the punishments as extreme is because they do not view such offences as serious, he claimed.

"While zina is nothing to them, in Islam it is a hostile element to efforts towards building a clean, honest and honourable society which, in turn, builds a nation of integrity," he said.

Stressing that the degree of severity in punishment depends on individual "values or judgments", Mohd Salleh referred to a recent amendment of the immigration law which provides for illegal immigrants to be whipped upon conviction.

"Isn't it extreme when the offence involves nothing more than entering the country to earn a living which is an individual right under the Islamic laws?" he asked.

Provision on zina

To the argument that the Islamic penal code punishments are severe, he said the evidence and legal requirements to enable a judge to implement these are just as severe, as the judge must be 100 percent convinced that all requirements of evidence have been met.

No circumstantial evidence will be allowed to convict a person for offences under hudud, but it can be used to create doubt in favour of the accused, he added.

Using the punishment of 100 lashes of whipping for unmarried persons committing zina , he said that the prosecution requires four witnesses of excellent Islamic character and each had to have seen actual penetration.

"But such evidence would be almost impossible because zina would not be done publicly but in secrecy," he noted.

"(The

provision is there) simply to protect the morality of society," he said, adding that this is why it is a grave offence for anyone to "talk loosely" on allegations of zina without producing evidence the accuser can be lashed 80 times for it.

"Such accusation is very grave because it can tear a family apart and damage the person's character and standing."

The former top judge said zina committed by force or rape cannot be punished under hudud as all rapes case will be dealt with under the federal government's Penal Code, which is the present secular criminal code.

He said that, to date, no one has been punished for zina through a court procedure, although there have been confessions of those who feared divine retribution in the hereafter.