The debate on Act 355 is coming soon. This article seeks to explain why this act is not Hudud and neither can it be enforced on non-Muslims. Amendment to Act 355 is to raise the ceiling for punishments under the Syariah Courts. Unlike the Civil Courts, the jurisdiction of the Syariah Courts are limited by the first order in the State List of the 9th Schedule.
The order contains an exhaustive list of matters that are within the powers of the Syariah Courts. Anything beyond this list cannot be enforced by the Syariah Courts.
1. Except with respect to the Federal territories of Kuala Lumpur, Labuan and putrajaya, islamic law and personal and family law of persons professing the religion of islam, including the islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and baitulmal or similar islamic religious revenue; mosques or any islamic public place of worship, 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; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of islam; the determination of matters of islamic law and doctrine and Malay custom.
The list above mentions all of the matters in which the Syariah Courts can exercise power. As it clearly mentions, these power can only be executed on Muslims. Anyone who is not a Muslim is not a subject of the Syariah Courts. Since the list above is exhaustive, we do not see how Act 355 can be associated with Hudud.
Hudud involves capital punishments and other punishments that are currently under the purview of the Civil Courts. Given the circumstances, hudud cannot possibly be enacted by the Syariah Courts. The amendment to Act 355 merely increases the ceiling for punishments mentioned under the State List.
The association of Act 355 to Hudud is not only unfounded but also not possible. After the debate, and assuming all will vote in favour, the State Assemblies will have to debate the bill. This is because the Syariah Court is a body under the State Government and reports to the Sultans. So each and every state will have to debate the amendments again.
Every state can then decide the amount of punishment that they feel is necessary. This will not only enhance the powers of the Syariah Courts but also prevent crimes in the future. The idea of imposing harsh punishments is that the punishment itself will act as a deterrent.
The intent is not to punish in the first place, but to prevent. With harsh punishments in place, we can expect crimes to be reduced over the following years. The argument that the current punishments could not prevent drug trafficking and other crimes. Though some of these crimes can be punished by death, these acts are still rampant.
There are two parts in any legal system, the penal codes, or the Acts that allow punishments, and the enforcement. If the enforcement fails, no amount of punishment can deter crime and vice versa. Both punishment and enforcement go hand in hand, both need to be executed with integrity.
When both are executed well, then we should succeed in reducing crime. The system is meant to protect citizens from harm. If the citizens do not adhere to the laws, then they are responsible for whatever happens to the country in the future.
If any citizen does not want to be a part of a country’s legal system then there is a problem. You see, wherever and whenever you step into a country regardless of how you like or despise its rules and regulations, you have to abide by the rules and regulations. You can’t lay claims, just because you don’t like a particular law, you don’t want to be a part of it. It just can’t happen, and never will.
Once you claim to be a Muslim, you will have to abide by the Syariah Laws that have been enacted in Malaysia. Unless of course you are not a Muslim. It is binding to sentence a Muslim according to Syariah Laws.
There is always a purpose for laws to be enacted in a nation. Laws seek to prevent crime and maintain order in a country. People can’t behave in a way they want to just because they want to. Everyone has to abide by the rules that have been placed. If everyone were to have it their way, chaos would ensue.
Being in a country where Muslims are subject to the Syariah Laws, then we, as Muslims have to abide by these laws. Claiming to be a Muslim is not enough, if we can’t adhere to the laws decreed for Muslims. A society can only function when everything is in order. An orderly society is one where every citizen respects each other and the legal system.
If we want to see progress, then we should put our acts together and be responsible citizens. Responsible towards each other and responsible towards the country we are in. We pray that in the future, all of us can prosper together as citizens of civilised nation.
Rehan Ahmad Bin Jamaluddin Ahmad
Research Fellow, Institut Kajian Strategik Islam Malaysia (IKSIM)
Disclaimer: The views expressed in this article are those of the author and do not necessarily represent the official views of, and should not be attributed to, Isma or Ismaweb.
