As the likelihood of PAS succeeding in getting its private member’s bill on hudud passed in Parliament gets dimmer, the party may still be able to achieve its ambitions by bypassing the august House altogether.

 

To date, every party on both sides of the political divide have declared that they will not back the private member’s bill, with the exception of Umno and PAS.

 

Even within Umno, which is still officially undecided, some outspoken leaders such as Nazri Abdul Aziz, Nur Jazlan Mohamed and Abdul Rahman Dahlan have already voiced out against backing PAS’ current push.

 

The private member’s bill, to be tabled by PAS president Abdul Hadi Awang, seeks to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 to remove the cap on the punishments that can be meted out by the syariah courts.

 

At present, the syariah courts can only sentence someone to up to three years in prison, a fine of up to RM5,000 or a maximum of six lashes.

 

If PAS is to succeed, it must not only rely on all 88 votes from Umno MPs and 21 more from its own party, but also bank on the possibility of Muslim MPs from other parties who are against the bill to abstain or be absent to secure a simple majority.

 

While the chances of success in Parliament appear to be slipping away, PAS may be able to capitalise on a legal view that the Syariah Courts (Criminal Jurisdiction) Act 1965 is unconstitutional.

 

The party can mount a constitutional challenge in a bid to do away with the law altogether instead of trying to amend it in Parliament.

 

Constitutional expert Abdul Aziz Bari ( right ) is one scholar who views the federal law as unconstitutional as he said it encroaches into state jurisdiction.

 

“I have always been of the view that the federal law is illegal because Islam is for the state to deal with.

 

“How can Parliament impose a cap on the punishment under the state,” he told Malaysiakini .

 

‘Punishments limited to caning’

 

However, even if PAS were to succeed, be it through the courts or Parliament, the Kelantan Syariah Criminal Code (II) Enactment 1993, which forms the basis of hudud in the state, can only be partially implemented.

 

This was conceded by PAS vice-president Husam Musa who said : “Not everything in the enactment can be implemented when the Syariah Courts (Criminal Jurisdiction) Act is amended.”

 

He said the punishments that can be meted out would be limited to caning which involves offences concerning zina, qazaf and drinking alcohol which comes under state jurisdiction. PAS wants to increase the lashings to be meted out for such offences to up to 100 strokes.

           

According to the Ninth Schedule, the states are allowed for the “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List”.

 

Issues of criminal law and its procedure such as stealing and murder, which the Kelantan hudud law also encroaches into, come under the federal list in the Ninth Schedule.

 

So while PAS may challenge the constitutionality of the Syariah Courts Criminal Jurisdiction) Act, its Kelantan Syariah Criminal Code (II) Enactment 1993 can likewise be challenged on similar grounds and Gerakan has already initiated a legal challenge.

 

A full implementation of Kelantan hudud will ultimately require an amendment to the federal constitution with a two-thirds majority in Parliament, which is an even tougher task for PAS to garner sufficient numbers.