PETALING JAYA - The Malaysian Bar has urged the Kelantan state assembly to immediately repeal its recently passed hudud Bill, saying that it is unconstitutional and discriminatory.
Its president Steven Thiru said the passing of the Syariah Criminal Code (II) (1993) 2015 Enactment reflected the state legislature's disregard for the country's constitutional system.
"The Bar calls upon the Kelantan state assembly to respect and abide by the Federal Constitution, and repeal the enactment immediately," he said in a statement.
Steven said the enactment went against the secular structure of the Constitution, which does not provide for a theocratic Islamic state or a parallel criminal justice system where Muslims and non-Muslims are judged differently.
"Hudud is also inconsistent with several provisions in the Constitution such as Article 5 (1) which gives all citizens the right to life or personal liberty, which cannot be deprived 'save in accordance with law'.
"The word 'law' in Article 160 (2) of the Federal Constitution does not expressly mention Syariah as part of the definition of law," he said.
Steven also cited Article 7 (2), which protects against repeated trials of accused persons in criminal offences.
"A Muslim person, who is tried and convicted for an offence under the Penal Code, may then be exposed to a second trial for the same offence and punished under hudud laws. This would be in breach of Article 7 (2)," he said.
He said that while hudud in Kelantan would only be applicable to Muslims, it would go against Article 8 (1) which guaranteed equality before the law and equal protection of the law.
Steven also pointed out that hudud was beyond the legislative capacity of state assemblies as the Constitution only allowed states to enact laws to create offences for Muslims, which were confined to "Islamic law and personal and family law".
"There is nothing in the State List that allows for the enactment and implementation of any form of criminal law including hudud," he said.
The Bar Council's Constitutional Committee chairman Firdaus Husni said the implementation of hudud could also be disputed with Article 3, which states that Islam is the religion of the Federation but it did not mean that Malaysia was an Islamic country.
"A 1988 Supreme Court case defined Islam in the context of Article 3 to only apply for rituals and ceremonies. This case has never been overruled until today," she said.
She said Article 8 also clearly stated that there should be no discrimination against citizens based on religion or place of birth in any law, pointing out that hudud only applied to Muslims in Kelantan while the rest would be tried under the Penal Code.