KUALA LUMPUR: The Kelantan state assembly will only debate amendments to the Syariah Criminal Code II when it meets next month, says PAS secretary-general Datuk Mustafa Ali, as hudud law cannot be implemented without the endorsement of Parliament.

“It is only about amending the enactment which could not be carried out previously. Its implementation is still a long away off,” Mustafa told The Malaysian Insider.

The state assembly was to have convened a special meeting in December to debate the enactment, but the meeting was postponed due to the severe floods that hit Kelantan and other East Coast states.

According to Mustafa, a representative from Kelantan explained the amendments to the PAS central committee at its meeting on Sunday. He also said the party would explain the law to its Pakatan Rakyat partners.

“The Pakatan Rakyat meeting yesterday (Sunday) decided that a special meeting would be convened to discuss this issue and also local council elections,” he said.

Mustafa added that the process of implementing hudud law would require not only the state legislative assembly’s approval but also Parliament’s endorsement.

“As long as Parliament does not allow for its implementation through several amendments, it cannot be done in Kelantan,” he said.

Mustafa was responding to media reports yesterday that hudud law, which involves the amputation of limbs, whipping and stoning to death for various offences, would be implemented in Kelantan after amendments are made at the state assembly next month.

Malay daily Sinar Harian had reported that Kelantan would not delay the implementation of the Syariah Criminal Code II despite suggestions from several quarters urging the state government to focus on post-flood rebuilding efforts.

Menteri Besar Datuk Ahmad Yakob said the enactment passed in 1993 was a trust given by the people of Kelantan, as written in the Quran.

He said the responsibility to implement hudud law is like the obligation to pray five times a day, which cannot be disputed.

“It is compulsory to pray even though there are calamities and it cannot be delayed, what more be shoved aside to give way to ensure flood victims obtain their welfare aid.

“It is like that with the syariah law, including the Syariah Criminal Code that is to be implemented in Kelantan. Efforts to uphold it on this earth must be done alongside the agendas of welfare and other efforts,” Ahmad was quoted as saying by Sinar Harian.

Mustafa said it is true Kelantan will present the amendments this March but it will not end there, without being brought to Parliament.

“These have been given to the technical committee that has been set up at the state level and also national level.

“In our meeting yesterday (Sunday), we heard the early reports and we will explain this matter to Pakatan,” he said.

According to a source, who is a member of the technical committee, the implementation of hudud law involves lengthy processes as it also requires the approval of the Rulers’ Council.

“Matters with the Rulers’ Council will be carried out by the national-level committee,” he said.

Mustafa said there are two federal laws that could limit the implementation of hudud in Kelantan.

The first is Act 355, better known as Act 365 of the Syariah Courts (Criminal Jurisdiction) Act, which limits the sentencing powers of the Syariah Court. The most severe punishment it can mete out is a jail term of not more than three years, not more than six strokes of the rotan and a fine of not more than RM5,000, or a combination of any of these sentences.

The Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) limits the powers of the state to approve any bill regarding syariah laws, and syariah courts are only allowed to serve the punishments mentioned above.

Act 355 is a law that was passed in Parliament and enforced nationwide. Any amendments to Act 355 have to go through Parliament and receive a majority vote from its members.

According to the source, since the punishments under hudud law exceed the limits stated in Act 355, the act would have to be first amended through a motion in Parliament.

He said Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom previously said the Attorney-General’s Chambers had agreed to the amendment.

“If this happens, the amendment to Act 355 will be done by the federal and not the state government. It only needs the support of a majority in Parliament,” the source said.

Another hindrance to the implementation of hudud law is Article 75 of the Federal Constitution that says the right to draft laws is a federal and not a state function.

“If this is to be expunged, an amendment to the Federal Constitution is needed and there has to be support from two-thirds of parliamentarians.

“If Kelantan or PAS wants to move a private motion, the way is to move a private member’s bill in the Dewan Rakyat and get the support of two-thirds of the members,” he said. — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on February 10, 2015.