To my Muslim friends who are practicing lawyers or academic (other friends, do share your opinion if you have sufficient legal argument or sufficient legal knowledge on this topic) If Hudud is to be implemented in Malaysia, will it be implemented at A) criminal prosedure law level : where the whole Hudud ideology is to be reflected from the beginning of criminalization of act, to ground of arrest, mode of investigation, prosecution, affidavits and submissions, summary trial : determination of burden of proof, and standard of proof, Prima Facie and Defence, presumptions of facts and presumptions of law, different standards of burden : replacing beyond reasonable doubt for prosecution and casting reasonable doubt for Defence, or rebuttal of presumption of fact in criminal case at balance of probability by Defence, subsequently determination of substantive Facts, and application of law, sentencing, mitigation, appeal etc OR b) at criminal substantive law level : what would constitute rape or theft, whether the intention would be required to proof theft, and how to ascertain intention or motive; whether motive is superior or intention is superior, (in common law motive is less relevant than intention, and you all know its used to establish intention only), and does rule of equity applies : against double jeopardy, equitable remedies at Judges discretion based on established precedents, and magtitude of action, on whether lack if intention would invalidate the charges, and if incapacity what are the level of determination ; whether is there any possible Defence at intention level, such as diminished responsibility, provocation, self Defence etc, and are there a set of established and persistent precedent on Defence for lack of intention (mitigating factors for mena Rae). OR C) Both? If both, how can Hudud prosecutors and Defence reconcile with Takzir during a trial? Are they suppose to charge an accused twice, based on Hudud law and common law concurrently? Or one after another if an accused is acquired at Hudud level but is found to have a case in Takzir trial? If a Muslim man is charged of raping a woman, does that means he has to be sent two charged sheets, one on Hudud charges and the other on Penal code charges? Because the penal code charges (Takzir) has different procedure than Hudud I suppose at evidential level at the very least?) if its concurrently so the prosecutor have to work double, to comply with the takzirs criminal procedure code, and Hududs criminal law? If its one after another, that means a Muslim man, if he is accused of a Hudud crime, must face trial twice the length of a non Muslim, in case he has a case in Takzir but failed to be charge at Hudud level? One more things is, can a Muslim accuse, who is convicted of a crime under Hudud, be given the Defence, mitigating factor, and remedy of common law ? Or if an accused was convicted at Hudud level but acquitted at Takzir level because of certain Sections in criminal procedure law? iE section Sekyen 294(1) of Kanun Acara Jenayah which allows the judge to set aside any criminal sentencing for first time offender of any crime, if a judge decided to invoke that at Takzir level, though a man is convicted at Hudud level, can he be given the remedy and Defence of common law? Mohon a healthy discussion for better understanding on Hudud implementation. P/S Friends who are interested to comment, would appreciate if you refrain yourself from merely sharing links and say read here ; your answer is there bla bla. That dont help. If you have a specific point to answer on my very genuine question, answer straight to the point without link to some 2 hours long video which 90% of the time talks about other non related stuff. If you cant answer straight to the point, no worries too. Just try refrain from commenting. Or you can tag your lawyer/academic friends whom you think can answer directly to my questions. Thanks ya
Posted on: Tue, 29 Apr 2014 11:09:53 +0000
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