Ragunath Kesavan, who led the Bar back in 2009, said this was because hudud law, if it was ever introduced in the country, would be under the federal government’s jurisdiction and hence, would encroach on the powers of the Sultans as head of Islamic affairs in their respective states.
Hudud would be under the federal government’s purview, he said, because, as it stood now, laws regulating certain offences under the Penal Code or Criminal Procedure Code could not be enforced by the state.
“So you can have hudud in Kelantan, but you cannot impose punishments for theft or robbery, for example.”
He was speaking at the forum, “Malaysia: Secular or Religious? What is our future?” held at the Wesley Methodist Church here yesterday afternoon.
“I remember there was once a suggestion to introduce a federal shariah court. That sounded interesting and progressive.
“The then attorney-general also suggested for us to have a central body regulating shariah lawyers, like the Malaysian Bar. But the rulers were very resistant.
“This is because doing so would take away their power. In a sense, that is why hudud will not happen in the near future. It will take away the state’s power.”
According to Ragunath, power over Islamic affairs is the sole residual power left to the sultans, which allows them to control the states to a certain extent.
“To be fair to him (the sultan), it is entrenched that as the ruler, he is head of religion.
“There’s nothing more powerful than that. He appoints the mufti, the chair of judges (for shariah courts), everything involving the state’s Islamic affairs.”
On PAS president Abdul Hadi Awang’s attempt to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), Ragunath said the Act itself was unconstitutional.
This, he explained, was because Islamic matters fell under the state, and Act 355 had inadvertently limited the powers of the state, especially the right of the state to decide on punishments for shariah offences.
“In 1965, and this is my own view, there was an inkling then that as it stood in the federal constitution, the powers that the state had were very limited.
“Without the Act, it seemed that the state could take action, but what kind of action, it wasn’t actually stipulated.
“But does Parliament have the power to now tell the state what it can or cannot do? My view is that the 1965 Act is unconstitutional.”
In 2015, the PAS-led Kelantan government passed amendments to the shariah enactment to implement hudud law in the state. But it was unable to enforce the enactment due to the limitations set by Act 355.
This led to Hadi submitting a motion to the Dewan Rakyat to amend Act 355. Originally, his proposed amendments sought to remove the caps on all punishments for shariah offences, excluding the death penalty.
Last November, however, Hadi revised his proposal to merely increase the maximum punishments for shariah offences from three to 30 years’ jail, from a fine of RM5,000 to RM100,000, and strokes of the cane from six to 100.