OCT 6 Art Harun in his many recent essay has provided us with a little substantial drift which have further enlightened us upon a debate regarding to a obstacles in a Constitution for hudud implementation.
The central row in his acquiescence revolved around a minute supplies underneath a Ninth Schedule of a Federal Constitution, particularly a state list, which sought to strength out a sum as envisaged underneath Articles 74 as good as 77. He was essentially trying to urge a in front of taken by a Bar Council which was criticised by Professor Dr Abdul Aziz Bari.
It appears right away which a antithesis to hudud upon a basement which a Constitution is secular as good as to illustrate unable to accommodate God-inspired laws is getting shaky as good as untenable. So is a antithesis founded upon equality between citizens as good as stand in jeopardy fears. This appears to be a box when a single reads a Art Harun's essay in whole whose emphasis was jurisdiction.
Art Harun argued which a states have no energy to exercise hudud as this is not provided for underneath their legislative list: civil as good as rapist law, between others, fall underneath a sovereign list. Although he may be a initial to teach a supplies there is zero new in these lines of argument.
But his excessive reliance upon a academic proceed of reading a Constitution has indirectly led to a subject mark over a legality of a syariah rapist system. It has to be said this is not something which would be tolerated: should a subject come to a door a justice will do a best to save a complement from collapsing. We have to accept which a existent complement has been around for as good prolonged as good as to let it go would lead to catastrophic goods upon a republic particularly as a Muslims are in a majority. Like in other legal systems, process decisions would eventually rule a day.
Art Harun seems to think which rapist law which includes energy to create offences is completely underneath sovereign han! ds. This is not quite a box for you have two different sets of rapist law as good as rapist systems; a single which is essentially centred around a Penal Code as good as a Criminal Procedure Code, as good as a other being a syariah rapist complement which comes underneath a office of a states. The Federal Court was just trying to uphold a complement in a preference in Sulaiman Takrib vs Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) & Other Cases [2009] 2 CLJ 54.
He additionally thinks which Islamic law revolves around personal counts which, between others, understanding with family counts such as marriage, divorce as good as so on. This is patently something which has a roots in a notice as good as world perspective of sacrament in a past, especially during British rule as good as in a evident aftermath after you gained autonomy in 1957. But this has altered as good as this change is evident for a past three decades or so.
In fact a little support may be found in a state list itself when a Constitution states, between others, which a state would have energy to understanding with "....Islamic law as good as personal law as good as family law of persons professing a sacrament of Islam.....". It additionally provides which a state will have energy to understanding with "...the determination of Islamic law as good as doctrine....."
The Constitution is wordless upon a definition of Islam, Islamic doctrine as good as so on. And given this lacuna reference has to be done to a sacrament itself. This being a box Islam in a Constitution is not as slight as claimed by a Supreme Court in Che Omar garbage bin Che Soh vs PP [1988] 2 MLJ 55. For a single thing a constitution should not allow itself to cling to upon a past especially when a Reid Commission itself did not say anything upon a matter.
A constitution, in sequence for it to survive as good as broach a goods, contingency move with a times as good as regulate itself to a realities. This can be finished by assorted means; a ! many ren ouned being by formal amendments as good as judicial interpretation.
As it appears hudud in Kelantan is a renouned demand. As a approved constitution a Federal Constitution contingency be review as good as implemented along this line. This does not meant you are starting into a host democracy. For a single thing this time Kelantan has done it transparent which hudud which it has in thoughts is just for a Muslims in a state. This can be done transparent in a dramatization itself as good as in a relevant sovereign legislations such as a Penal Code.
We have seen many examples whereby a multiplication of powers as laid down in a Constitution is not particularly followed. The placing of Islamic banking brawl in a civil justice rather than a syariah justice is a single good example. And you have seen how assorted Islamic bodies as good as institutions being set up by a sovereign governments.
Some have rightly said which our Constitution is not cast in stone. It has to reply to a renouned will, especially when it has been expressed in an open as good as transparent.
* Dr Zulqarnain Lukman is an disciple as good as barrister of a High Court of Malaya.
* This is a personal perspective of a writer or publication. The Malaysian Insider does not validate a perspective unless specified.
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