tag:blogger.com,1999:blog-27256617.post5828196589645679867..comments2024-02-19T03:21:42.482+08:00Comments on CHARLES HECTOR: Act 355 and Hadi's Motion - Are we unnecessarily jumping to conclusions? Prejudice?Charles Hectorhttp://www.blogger.com/profile/10962669552161424734noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-27256617.post-2936477867652301202017-11-28T19:00:43.124+08:002017-11-28T19:00:43.124+08:00The Syariah goes against the secular structure of ...The Syariah goes against the secular structure of the Malaysian Federal Constitution, which does not envisage a theocratic Islamic state, or a parallel criminal justice system where Muslims and non-Muslims are subjected to unequal treatment before the law.<br /><br />In Che Omar Bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, the then Supreme Court held that laws in Malaysia do not have to conform to Islamic principles, and confirmed that Malaysia is a secular state. Thus, if hudud were brought into the criminal justice system, it would result in the importation of Islamic penal law into a secular system. This would result in a rewriting of the Federal Constitution. <br /><br />Hudud is also inconsistent with these provisions of the Federal Constitution:<br /><br />(1) Article 5 clause(1) of the Federal Constitution confers to all citizens the right to life or personal liberty, which cannot be deprived “save in accordance with law”. The word “law”, as defined in Article 160 clause (2) of the Federal Constitution, does not expressly provide for, or mention Syariah as part of the definition of law. The Syariah was clearly omitted from the definition; <br /><br />(2) Article 7 clause (2) of the Federal Constitution protects against repeated trials of accused persons in criminal offences. A Muslim person, who is tried and convicted for an offence under the Penal Code, may then be exposed to a second trial for the same offence and punished under hudud laws. This would be in breach of Art.7 cl.(2); and<br /><br />(3) Art.8 cl.(1) of the Federal Constitution guarantees equality before the law and equal protection of the law. The Syariah would be applicable only to Muslims. This would offend Art.8 cl.(1), as it would result in divergent procedures, separate evidentiary rules and differing punishment being applicable to Muslims as compared to non-Muslims, in respect of criminal offences. A Muslim offender would also face heavier punishment under hudud laws for the same offence, compared to a non-Muslim offender who is not subject to hudud laws. Further, the hudud laws entrench, and result in, injustice and discrimination against women and this would be contrary to Art.8 cl.(2).<br /><br />The Federal Court in the case of Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 forcefully stated that :<br /><br />"Further, it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric.<br /><br />"Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional.<br /><br />"Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution."<br /><br /><br />As Hudud is inconsistent with the rights guaranteed by Part II which are enforceable in the courts that form part of the basic structure of the Federal Constitution, there is no doubt as to its unconstitutionality.<br /><br /><br />http://www.malaysianbar.org.my/press_statements/press_release_%7C_hudud_is_unconstitutional_discriminatory_and_divisive.html<br /><br />http://m.thesundaily.my/node/373748Hakimi Abdul Jabarhttps://www.blogger.com/profile/07318460755526448787noreply@blogger.comtag:blogger.com,1999:blog-27256617.post-54181265454809665162016-10-27T15:38:51.936+08:002016-10-27T15:38:51.936+08:00Lawyers, practising & non-practitioners have a...Lawyers, practising & non-practitioners have already realized this pertinent fact for A VERY LONG TIME : The argument has only been addressed at other forums or at seminars and perhaps, to politicians and Parliament.<br /><br />Tun Salleh Abbas LP & his brethren were visionaries!<br /><br />The excellent & highly-respected decision of the then Supreme Court (the precursor to the present Federal Court) in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, which till date remains THE LAW :<br /><br />However, we have to set aside our personal feelings because THE LAW in this country is still what it IS today, SECULAR LAW, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.<br /><br />Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 comprised of a five-man bench: Tun Salleh Abas LP, Wan Suleiman SCJ, George Seah SCJ, Hashim Yeop A. Sani SCJ and Syed Agil Barakbah SCJ (SCJ is short for ‘Supreme Court Justices’).Hakimi Abdul Jabarhttps://www.blogger.com/profile/07318460755526448787noreply@blogger.comtag:blogger.com,1999:blog-27256617.post-27530368260861179772016-10-27T15:31:36.225+08:002016-10-27T15:31:36.225+08:00The excellent & highly-respected decision of t...The excellent & highly-respected decision of the then Supreme Court which till this date remains THE LAW:<br /><br />However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.<br /><br />Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55Hakimi Abdul Jabarhttps://www.blogger.com/profile/07318460755526448787noreply@blogger.com