PETALING JAYA: Resolving the issue of the conflict between federal and state jurisdictions on syariah law can be made by referring to the Federal Constitution and amending the legislation regarding syariah, says constitutional expert Prof Datuk Dr Shad Saleem Faruqi.
He said it is important for all segments of society to understand that the federal laws, which include the Constitution and other federal Acts, are already addressing various Islamic offences.
“The Penal Code punishes murder, homosexuality, theft, robbery, rape and corruption, among others. The laws are all there.
“When a person commits a theft, its punishment is not only available in the Penal Code, but in Islamic law as well.
“Which means there are punishments for the said offence, just that the Syariah Court has no jurisdiction to prosecute it. That’s all.
“Contrarily, for offences such as a Muslim drinking alcohol, not fasting or committing adultery will be prosecuted by the Syariah Court, not the federal courts,” he said when contacted yesterday.
With this in mind, Shad Saleem said the second step to resolve the issue would be adding specific lists into the Syariah Courts (Criminal Jurisdiction) Act 1965 so that it will be clear to the respective courts on what their jurisdictions are.
He said when the Syariah Act was created in 1960s, Parliament had failed to provide details and therefore can be considered as incomplete.
“Parliament never passed detailed law. It only provided for penalties like six strokes of the rotan, three-year jail and RM5,000 fine. It doesn’t mention the offences.
“That’s the fault of the federal Parliament, as the federal Parliament’s law is incomplete. The 1965 law is incomplete,” he said.
The law professor said granting judicial powers to the states would lead to more problems, as Malaysia has a number of states.
He also called on critics to understand the basic foundation of Islam, adding that the religion had never demanded for the Syariah Court alone to punish certain offences.
“If you have 14 separate laws, then they’ll be 14 separate punishments. What’s the point of us having federal law and the Federal Constitution?
“Islam does not insist that these offences be created by authority A, or authority Y or authorities Z. As long as something that is wrong in Islam, it is wrong in law. That’s good enough.
“Whether it’s punishable in federal law, or punishable in state law, it has nothing to do with Islam. As long as it is a sin, it is a sin. Otherwise, we might as well make the state assembly supreme,” said Shad Saleem.
Prime Minister Datuk Seri Anwar Ibrahim earlier told the Dewan Rakyat that the government has agreed to set up a special committee sanctioned by the Conference of Rulers in a bid to empower and elevate the status of the Syariah court.
He said the committee would conduct research, including discussions with state mufti and all relevant parties to gather views to formulate regulations that can be implemented to enhance the jurisdiction of the Syariah Court.
Constitutional lawyer Andrew Khoo said the creation of the committee was a positive step towards providing a clearer understanding of legal framework of the respective laws.
“I welcome the formation of this special committee which hopefully would help explain to the various state legislatures the correct constitutional scheme of the Syariah courts within the framework of the Federal Constitution which was agreed to at the time of the Merdeka constitution,” he said.
He is of the view that syariah-only judges and legal practitioners, including officers of state syariah departments, may not be fully aware of the constitutional construct in which syariah law and courts are meant to be understood.
This includes the effect and implications of Federal Court decisions on their scope and jurisdiction.
“Hopefully, the proposed special committee will help to clarify these things to them, so that there will no longer be any confusion or misunderstanding,” he said.
Khoo noted that current misunderstanding has led to “incorrect, imprecise and intemperate statements made by some quarters, including lawyers”.
