Recently it was reported that PAS ulama chief Mahfodz Mohamed had said that all states can opt to implement stricter Shariah court punishments if the so called ‘Hudud Bill’ is passed.

In light of this, PAS chief Abdul Hadi Awang’s Private Member’s Bill has to be withdrawn forthwith without any further vote or debate on it.

The reason is this.

The Shariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) is an act of Parliament which confers jurisdiction to the Shariah Courts constituted under any state law for the purpose of dealing with offences under Islamic law. The jurisdiction conferred by Parliament to all states is limited, however.

Parliament gets this power to make law with respect to a matter which is in the State List by virtue of Article 76(1)(b) of the Federal Constitution, i.e., for the purpose of promoting uniformity of the laws of two or more states.

Section 1(1) of Act 355 states that “This Act may be cited as the Shariah Courts (Criminal Jurisdiction) Act 1965”.

Section 1(2) of Act 355 states that “This Act shall apply to all the states of Malaysia of peninsular Malaysia.”

Black’s Law Dictionary defines the word ‘shall’ to mean ‘As used in statutes, contracts, or the like, this word is generally imperative or mandatory.

It also defines the word to mean ‘but it may be construed as merely permissive or directory (as equivalent to “may”) to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and when no public or private right is impaired by its interpretation in the other sense’.

Mandatory or merely permissive?

So, what was the legislative intention?

Was it meant to be mandatory or merely permissive? In other words, was this jurisdiction, that is conferred by Parliament to any state that sets up a Shariah Court, to be exercised by that state if it so wishes, or must that state that sets up a Shariah Court exercise it?

NS Bindra’s Interpretation Of Statutes (9th Ed) states at page 388-389, in referring to a case of Reynolds vs Board of Education, Union Free School of District of City of Little Falls:

“If the language employed by the legislators shows a careful choice of words, and this care appears to follow through the distinctions between the terms of command and those of mere authorisation, it would appear reasonable to infer that the writers of the statute intended ‘may’ to mean ‘may’ and ‘shall’ to mean ‘shall’. It has been held that the use of ‘may’ and ‘shall’ in different clauses or sentences of the same section or paragraph of statute evidence a legislative intention that each of the words is to be given its ordinary meaning”.

It is clear from the word ‘may’ appearing in Section 1(1) of Act 355 and the word ‘shall’ appearing in Section 1(2) of Act 355 that Parliament had intended that any state that sets up a Shariah Court must exercise the jurisdiction conferred on it by Parliament, and therefore cannot opt not to exercise the jurisdiction.

This approach would give a harmonious reading to Article 76(1)(b) of the Federal Constitution which gave Parliament the power to make that Act 355 in the first place for the purpose of promoting uniformity of the laws of two or more States.

Therefore, going by what PAS ulama chief Mahfodz Mohamed said that all states can opt to implement stricter Shariah court punishments if the so-called ‘Hudud Bill’ is passed, this amendment to Act 355 cannot be allowed to be voted on or debated on because it would not be for the purpose of promoting uniformity of the laws of two or more states, and if that is the case, then Parliament does not have any powers to encroach into the State List under Article 76(1) of the Federal Constitution.

This would mean only one thing, that the amendment bill of Act 355 has to be withdrawn, or a parliamentarian has to raise some sort of interruption in Parliament to seek clarification.

PUTHAN PERUMAL is an advocate and solicitor of the High Court of Malaya.