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Let's take a look at Hadi’s motion and hudud

KINIGUIDE The fast-tracking of PAS president Abdul Hadi Awang’s Private Member's Bill has reignited debates about hudud, and the ongoing twin by-elections have provided the fuel to keep the debate raging.

But what exactly transpired in Parliament that day? What does it have to do with hudud in the first place?

In this instalment of KiniGuide, we will dwell on these thorny issues and more.

What is a Private Member’s Bill?

In the normal business of Parliament, it is usually the government that tables new laws and amendments for the Parliament’s deliberation. These are termed as government bills, or just simply ‘bills’.

However, other members of Parliament can propose new legislation as well. This is where Private Member's Bill comes in. It is through a Private Member’s Bill that Hadi seeks an amendment to the Syariah Courts (Criminal Jurisdiction) Act 1965.

The problem with such a bill in Malaysia is that government bills always take precedence over it. In addition, the bill’s proponent must seek leave (permission) from the Parliament in order to table the bill in the first place.

Government bills always get heard first in the Dewan Rakyat before Private Member’s Bills and the motions to table them even have their chance to be heard.

There always seems to be enough government business to occupy all of the Parliament’s time and ensure that Private Member’s Bills and motions to table them would never see the light of day.

The government could theoretically give way to a Private Member’s Bill or a motion to table it, and Standing Order 14(2) allows for this.

However, the government had never exercised its discretion in such a way - until on May 26.

What happened in the Dewan Rakyat on May 26?

It was the last Parliament sitting for the session until the next session in October.

Late night on the day before, a motion to table Hadi’s Private Member’s Bill appears on the Dewan Rakyat’s order paper, which lists all of the assembly’s business on May 26.

It was the very last item on the list - Item 15.

When May 26 came, after the MPs have reconvened after lunch break at 2.30pm, Minister in the Prime Minister’s Department Azalina Othman Said invoked Order 14(2) to fast-track Hadi’s motion to table his Private Member’s Bill. This was seconded by Deputy Works Minister Rosnah Abdul Rahshid Shirlin.

You can read a transcript of what transpired next in the Parliament’s Hansard, which is available here and starts on Page 53.

The gist of it is that opposition MPs questioned the move and even tried to put the invocation of Order 14(2) to a vote, but it was to no avail.

After about half-an-hour of arguments, Hadi was finally allowed to read out his motion to allow him to table his Private Member’s Bill.

Now that the motion has been tabled, the speaker Pandikar Amin Mulia gave him the option to either elaborate on his motion then and there, or at another day.

Hadi opted for the latter, and the government went on with its usual business.

What’s in Hadi’s Private Member’s Bill?

The bill seeks to replace one paragraph in the Syariah Courts (Criminal Jurisdiction) Act 1965, and insert another paragraph immediately afterwards.

The first part removes an existing limit to the punishments that can be meted out by Syariah Courts. For now, the Syariah Courts cannot mete out sentences of more than three years’ imprisonment, fines of more than RM5,000, whipping of more than six strokes.

It gives Syariah Courts jurisdiction over Muslims for offences stipulated in the relevant syariah laws.

The second part of the bill allows the Syariah Court to impose any punishments stipulated in the relevant state laws, except for the death penalty.

You can read Hadi’s motion in full and see where it sits in the Parliament’s order paper here.

What else was in the Order Paper that day?

At the time Hadi’s motion got fast-tracked, there were 14 outstanding items on the order paper - three government bills, one government motion, and 10 motions from opposition MPs including Hadi.

Among others, these include separate motions by opposition leader Dr Wan Azizah Wan Ismail and Gopeng MP Dr Lee Boon Chye regarding the Public Accounts Committee report on 1MDB.

There is also a motion by Kapar MP Manivanan Gowindasamy urging Parliament to consider banning the sale of cheap liquor, and to set up alcohol rehabilitation centres.

Hadi’s motion doesn’t even mention hudud. How does hudud come into the picture?

In its current form, the Syariah Courts (Criminal Jurisdiction) Act 1965 presents a hurdle to hudud’s implementation, because of the limits the law imposes on the punishments that can be meted out by the syariah law.

Punishments under Kelantan’s and Terengganu’s hudud laws are generally much more severe than what these limits would allow.

For example in Kelantan that is still under PAS rule, hudud is provided under the Syariah Criminal Code (1993) 2015: the punishment for theft (sariqah) is the amputation of the right hand on the first offence, and the left foot on the second offence.

The punishment for making accusations of adultery or sodomy without four credible witnesses (qazaf) is 80 lashes of whipping.

Lifting the limits under Section 2 of the Syariah Courts (Criminal Jurisdiction) Act would allow these punishments to be carried out.

Penalties under the Terengganu Syariah Criminal Offense (Hudud and Qisas) Enactment 2003, which was enacted by the then PAS-led government, are largely the same.

Would there still be hudud punishments that Kelantan and Terengganu cannot perform?

Yes, because some offences stipulated under the two laws call for the death penalty.

In the case of robbery (hirabah) that results in the victim losing both his life and property, the offender would not only be put to death but also crucified afterwards.

Other offences that call for the death penalty include married persons engaging in adultery (zina), and blasphemy and aposthesy (irtidad and riddah).

The two syariah enactments also provide for Qisas and ta’zir punishments, which, unlike hudud, is not based on the Quran or the Sunnah (prophetic traditions).

One of these also call for the death penalty, namely the penalty for murder.

Is Hadi’s Private Member’s Bill limited to these provisions?

No. The wording of the proposed amendments is sufficiently broad to affect any criminal offence that can be tried under syariah law, in any state or federal territory in Malaysia.

Does it mean Muslims and non-Muslims will be punished differently for theft and rape?

Not exactly.

According to Malaysian Bar president Steven Thiru, the Private Member's Bill seeks to allow the syariah court jurisidiction over Muslims for criminal offences - but only for offences listed in the State List of the Ninth Schedule of the Federal Constitution.

The State List allows "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".

Theft and rape are criminal matters under the Federal List, dealt with in the Penal Code.

According to Thiru, the hudud offences which fall under the State List are zina (sex outside of marriage), qazaf (false accusation of zina), syrub (alcohol consumption) and irtidad (aposatsy) - all punishable with whipping ranging from 40 to 100 lashes under the Kelantan enactment.

What happens next?

Unless the motion is withdrawn, Hadi’s motion would remain on the Parliament’s order paper until it is voted upon.

It will take precedence over other Private Member’s Bills and motions, but will still be listed behind government business in the Parliament’s order paper.

Except in the unlikely event where the government finishes its business while Parliament still has time to spare, the government would likely have to invoke Order 14(2) again in order to put Hadi’s motion to debate and vote.

If the motion is carried, the amendment bill itself would be tabled in Parliament for its first reading, and the usual processes of enacting legislation.

This KiniGuide is compiled by Koh Jun Lin.

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