Friday, 17 March 2017

Why the brouhaha over Act 355 amendment?

“There is no way that the Syariah Court can impose the Hudud punishment in any Hudud offences.

“The proposed amendment to Act 355 is intended to enhance the status of Syariah Court in controlling the moral bahaviour of the Muslims in the world which is facing very serious social problems,” said the Menteri Besar.


MOOT COURT, AHMAD IBRAHIM KULLIYYAH OF LAW (AIKOL), INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA (IIUM), GOMBAK, SELANGOR – Why now? This is what raised by Menteri Besar Dato’ Sri DiRaja Adnan Yaakob on the ongoing debate about the proposed emendment to Act 355 – should be the third since 1965; 

When it’s enactment (in 1965) followed by the the two amendments made in 1984 and 1989 went through without fuss what more strong opposition such as that it presently received from certain parties. 

… from the first enactment to the two amendments, there was never a brouhaha nor outcry from the public. Nobody cares, not like today,” said the Menteri Besar when delivering his keynote address at the Symposium; Act 355 Amendment organized by AIKOL held here on Friday morning, March 17.

The first amendment (1984) he said, has resulted in the increase of punishment – from an imprisonment of only six (6) months to three (3) years, a fine of RM1,000 to RM5,000; and the introduction of whipping of up to six (6) strokes.

While the second amendment (1988) was done so as to make the law – Act 355, namely the Syariah Courts (Criminal Jurisdiction) Act 1965, also applicable to the states of Sabah and Sarawak. 

FACING THE ATTENTIVE AUDIENCE... Apart from AIKOL students, among the crowd on this Friday morning event are lecturers and some practising lawyers.


The Menteri Besar recollected that, on 26th May last year (2016), Member of Parliament for Marang, Dato’ Abdul Hadi Awang, who is also the President of PAS has proposed another amendment to Act 355 through a private member’s bill in the Parliament. 

The proposal was that the punishment – three (3) years imprisonment, RM5,000 fine and six (6) strokes of whipping or ‘3 5 6’; be amended to consist an imprisonment of up to 30 years, fine of up to RM100,000 and whipping of up to 100 strokes. 

“As a result of this,” he added, “… there was a public outcry and the debate has been going on until today” and that, “Many said that the amendment is intended to empower Syariah Courts to impose Hudud Laws”.

The Federal Constitution, Dato’ Sri DiRaja Adnan said, has divided and distributed powers between the Federation and the State and that offences such as theft, robbery and uprising that are Hudud offences, have been included in the Penal Code which is under the jurisdiction of the Federal Government. 
“Even to a layman, one can see that there is no way that Hudud offences can be dealt with in our country as of now, because offences like the three that I mentioned just now are under the jurisdiction of the Federal Government. 

LISTENING TO WHAT THE PANELIST HAS TO SAY... After delivering his speech, now it is his turn to be among the audience to listen to what the panelist has to say about the topic of Act 355.

“There is no way that the Syariah Court can impose the Hudud punishment in any Hudud offences. 

“The proposed amendment to Act 355 is intended to enhance the status of Syariah Court  in controlling the moral bahaviour of the Muslims in the world which is facing very serious social problems,” he argued. 

Ever since the 80s he said, the need to enhance the Syariah Courts criminal jurisdiction has already been voiced and that, even Syariah Court judges have expressed concerns on the inadequacy of Syariah Courts criminal powers.

In Syarie Prosecutor against Mohd Zulkifli bin Adam and Anor, Dato’ Sri DiRaja Adnan quoted, the fine of RM800 for khalwat has failed to deter persons who had been previously convicted from repeating the crime.

“As the small sum of money as fine is not a problem to many, they do not take the sentence of the court seriously and this has resulted in the increase of such offences with scant regard to the laws.

MEETING THE PANELISTS... The Menteri Besar is jotting something on a piece of paper while others (left to right) - Assoc Prof Dr Khairil; Dato’ Zainul Rijal; Encik Nizam (partly hidden) and Encik Arunachalam, look on.

“A severe sentence coupled with imprisonment was deemed appropriate to the current circumstances as this would serve as a lesson to the offenders from repeating the offence and to the public from committing similar crimes,” he said.
In Pendakwa raya against Sangkar a/l Ratnam (2007), it was said; “The punishment should be ‘deterrent’ in that sentences imposed should have the effect of daunting the perpetrator, no matter what his age, from ever repeating such violence or even contemplating violence again.
And in Tuan Mat bin Tuan Lonik against Public Prosecutor (2009); “The sentence must be deterrent enough, in that the prisoner will realise crime does not pay, with the punishment being debilitating to his freedom. Not only will would-be offenders be deterred from trying but so will it deter repeat offenders.
He also quoted the case of Tan Bok Yeng against Public Prosecutor (1972), whereby Sharma J (as his Lordship then was) stated; “Law cannot, in my view, remain merely a static and a meaninglessly, ornamental and an orthodox instrument of justice, ineffective in its result and application.
“The social needs of the times have to be met and effectively met. It is not merely the correction of the offender which is the prime object of the punishment. The considerations of public interest have also to be borne in mind.

“In certain types of offences, a sentence has got to be deterrent so that others who are like-minded may be restrained from becoming a menace to society.” 
Hence, the proposal to increase of the Syariah Courts Criminal Jurisdiction from the current RM5,000 fine, six (6) lashes and three (3) years’ imprisonment to 30 years imprisonment, fine of RM100,000 and 100 strokes of whipping.

According to Dato’ Sri DiRaja Adnan, this move is timely given the fact that the criminal jurisdiction of the Syariah Court is manifestly inadequate to secure the effective administration of the Islamic Criminal law. 

He also touched on the mode of administering whipping that many of the public were either not aware of, or confused so much so that they perceived that whipping in Islam is very brutal and cruel. 

Whereas he said, the mode was very much different with that falls under the Criminal Procedure Code Act 593 Section 288 (3) whereby the whipping can the skin of persons being whipped, to disintegrate and leave permanent scars.


“That is why some offenders, some prisoners, they prefer to have the lashes to be substituted with extra imprisonment because the canning is so harsh, so painful , very excruciating,” he added. 

A Muslim scholar – Ibnu Taimiyah he said,  has clarified methods of inflictiong whipping that the beating should be medium, not too hard nor too soft and that the cane should not be too heavy nor too light and before being whipped, the offender must be certified fit by a doctor to receive caning and that he or she must be present during the event. 

“Whipping in Islam, has the intention of teaching the offenders or giving examples to the others not to commit any crime like the crime that has been committed by the offenders. It is a question of providing a lesson to the others. Or in a away, to make the offenders ashamed of themselves,” he added. 

Dato’ Sri DiRaja Adnan concluded that; “The brouhaha as I said, is really unnecessary. I hope everybody will go back and refer to verse 179 of Surah Al-A’raf. Well, the brouhaha arises as a result of some group of people with politically motivated intention known only to them.

“Basic problem with Allah’s creature by the name of human being or man is that, in the whole of man’s life, they are grappling with problems of their own ignorance or stupidity…”


Also present at this half-day Symposium are Judges Court of Appeal, Dato’ Dr Hamid Sultan Abu Backer; Pahang State Executive Councillors – Dato’ Shafik Fauzan Sharif and Dato’ Shahaniza Shamsuddin; 

IIUM’s Rector, Prof Dato’ Sri Dr Zaleha Kamaruddin; Dean of Aikol, Prof Dr Ashgar Ali Ali Mohamed; and the four (4) panelists – Assoc Prof Dr Khairil Azmin Mokhtar of AIKOL; President of The Muslim Lawyers Association, Dato’ Zainul Rijal Abu Bakar; and prominent lawyers - Encik Nizam Bashir and Encik Arunachalam Kasi. – Khabar