As said by Syahredzan Johan (Lawyer)
2 Private Members bill will be introduced in parliament.
(1) is to seek approval to enact punishment under the penal code.
(2) is to amend the Syariah Court Act to give freedom for the state to enact punishment higher than what it is now.
Challenges No. 1:
The first immediate challenge is with regard to the jurisdiction of the Syariah Court. Currently, the jurisdiction is limited to the famous '356' limitation. A maximum of three years in prison, maximum fine of RM 5,000 and/or a maximum of 6 strokes.
What PAS would need to do is to amend this particular act, to give powers to the Syariah Court in Kelantan to give out punishment more than the current limitation. This is quite easy since it needs only simple majority in parliament to change the act.
Challenges No. 2:
The jurisdiction of the state to enact criminal laws. The federal has the power to enact criminal laws, that is in parliament, not in the state. State only has the power of jurisdiction to make laws for the creation of punishment of offenses by person professing the religion of Islam against the precept of that religion, EXCEPT in regards to matter included in the federal list.
The offenses in the Syariah enactment has no equivalent under the federal penal code. That is why PAS need to introduce a second bill to allow Kelantan to enact criminal laws which are under federal jurisdiction. And this also needs a simple majority in parliament to allow Kelantan to enact such laws.
However, he argues that the criminal laws under the federal list empowers parliament to make laws for everyone, not just specifically for Muslim. So, since the federal cannot differentiate between Muslim and non-Muslim, no specific power can be given to the state.
Challenges No. 3:
Suppose that both the bill is passed, article (8) states that all people are equal before the law and entitled to equal protection under the law. Except as expressly authorized by the constitution, there should be no discrimination of people by religion, race, place of birth etc.
Implementing Hudud in Kelantan, would arguably offend Article (8) of the Federal Constitution since there would be different criminal law for Muslim and Non-Muslim. Also there is different law for Muslim in Kelantan and Muslim in other state. Also, Muslims in Kelantan would also be subjected to the penal code on top of Hudud. This difference is not expressly allowed by constitution and by the provision which allow for differentiation in personal laws.
P/s: Personal law allows for difference that offends Article (8). For example, why is it different for Muslims to get married (and much more difficult) than Non-Muslim.
Challenges No. 4:
The fourth challenge is that Hudud implementation would offend Article (7) (2). Simply put, Article (7) (2) prohibits against double jeopardy. Once you're tried for an offense, you cannot be tried again for the same act of offense. As mentioned above, you may be charged under the penal code, and also under Hudud for the same offense.
Challenges No. 5:
The final hurdle is that Malaysia is a secular constitution. Or rather, Malaysia is not an Islamic State because it puts the federal constitution as the highest law in the land. Hudud, howerver is a punishment for offenst against God.
So, the answer is no unless the constitution be amended. This is where the Basic Structure Doctrine comes in. Constitutional amend which disturbs the basic structure of constitution is unconstitutional.
Source: Malaysiakini forum on Youtube.
http://www.youtube.com/watch?v=86NTTMchKJ0
