Wednesday, May 19

MPs urged to uphold Constitution by voting against Hadi’s Bill

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THE Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism is calling on all parliamentarians to vote against the amendment to the Syariah Courts Act (Criminal Jurisdiction Act 1965) (Act 355).

According to the council, the proposed Bill has far-reaching consequences for the nation and thus, it feels duty-bound to issue an open letter to all lawmakers to carry out their duties as required by their oath of office to protect the Federal Constitution.

The council’s statement – dated Oct 14 last year – has been undersigned by its president Dato Seri Jit Hen, deputy president Datuk RS Mohan Shan, vice-president Bishop Sebastian Francis, vice-president Sardar Jagir Singh, vice-president Daozhang Tan Hoe Chieow and secretary general Prematilaka Serisena.

‘Hadi’s Bill’ – called as such because of its first tabling as a Private Member’s Bill by PAS president Datuk Seri Abdul Hadi Awang – seeks to make amendments to Act 355 to enhance the punishment meted out by the Syariah Court.

The Bill receives strong opposition from non-Muslims for fear that once it is passed, it would pave the way for the implementation of ‘hudud’ – first in some states and later, nationwide.

Barisan Nasional (BN) component parties MCA and MIC have also voiced their unequivocal objection to the Bill. Umno, which is supportive of it, has decided to take it over and table it as a government bill.

It is expected that in the parliamentary meeting in March, the Bill would be debated and a vote could be called for it to be passed.

 

Empowering Syariah Court

 

Under the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), the Syariah Court can only impose punishments up to three years imprisonment, fine up to RM5,000 and whipping up to six lashes – commonly known as ‘3-5-6 Limits’. Hadi’s Bill seeks to amend Act 355 to increase the jail term from the present maximum of three years to 30 years, the fine from RM5,000 to RM100,000 and the present maximum six lashes to 100 lashes.

However, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism pointed out that without the passing of Act 355, the Kelantan State Legislative Assembly would not be able to enforce the Syariah Law Enactment – known as Kelantan Syariah Criminal Code 11 (1993) 2015, which was passed two years ago.

The council listed three major areas of punishments under Kelantan Enactment – the ‘hudud’ (fixed punishments) of which the offences include theft, robbery, adultery, false accusation of adultery, sodomy, intoxication and heresy; the ‘qisas’ (retaliatory) that relates to punishments for homicide and causing bodily injuries; and the ‘ta’zir’ (discretionary) that refers to the punishments imposed when those for ‘hudud’ or ‘qisas’ cannot be meted out.

The council pointed out: “If Hadi’s Bill is passed by Parliament, it would allow the Kelantan Syariah Criminal Code 11 (1993) 2015 to be implemented and to impose hudud punishments of theft, robbery, adultery, sodomy and so on. The proposed Hadi’s Private Member’s Bill is clearly a Hudud Bill as it seeks to empower states to introduce amendments, empowering Syariah Court to impose hudud punishments.”

 

‘Malaysia is a secular state’

 

The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism said as Malaysia is a secular state as enshrined under the Federal Constitution, Hadi’s Bill which is orientating the nation towards becoming an Islamic state, would have no place in Malaysia.

The council has brought some of the historical documents and evidence to prove that Malaysia is a secular state, among them are:

1. The Alliance Memorandum submitted jointly by Umno, MCA and MIC to Lord Reid Commission in 1956, which stated: ‘The Religion of Malaya shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals, professing and practising their own religion and shall not imply that the State is not a secular state’.

2.            In Para 169 of the Reid Report, it is recommended that although Islam is to be the state religion, it does not imply the state is not a secular state.

3.            The White Paper, issued by the British Government in June 1957, reconfirmed that the inclusion of the declaration that Islam being the religion of the Federation ‘will in no way affect the present position of the Federation as a secular state’. (Paragraph 57, the White Paper).

4.            The Cobbold Commission Report 1963 reiterated the secular nature of the New Federation, comprising Malaya, Sabah, Sarawak and Singapore.

5.            In the 20-Point Agreement of Sabah and the 18-Point Agreement of Sarawak, the first point of both agreements is that there would be no state religion in Sabah and Sarawak.

6.            The nation’s founding father Tunku Abdul Rahman Putra Al-Haj who was deeply involved in the drafting of the Constitution and attainment of Independence of Malaya, had clearly stated on a number of occasions that Malaysia was a secular state and not an Islamic one. This included a debate in the Federal Legislative Council in 1958 where he said: ‘I would like to make it clear that this country is not an Islamic state as it is generally understood, we merely provide that Islam is the official religion of the state’.

 

Creation of dual-legal system

 

The council held the view that MPs should reject Act 355 because the Bill “seeks to create a dual legal system which is not allowed by the Constitution as it will undermine the basic structure of the Constitution.”

It argued that the ‘Law’ according to Article 160(2) of the Federal Constitution, “includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.”

The council said the Syariah law (of which hudud offences are part) is not even included in the definition of ‘law’ under the Federal Constitution.

“The introduction of hudud offences will affect the very fabric of the Federal Constitution as Malaysia is basically governed by secular laws.”

 

Syariah law not considered by Federal Constitution framers

 

The council maintained that Islamic Law should be confined to what is provided for in the State List II of the Ninth Schedule with the limitations in its punishment.

“In fact, words like ‘Islamic law’ or ‘Syariah Courts’ were not found or included in Scheduled 9 List II in the 1957 Federal Constitution. This means Syariah law or hudud offences were never in contemplation of the framers of the Constitution.

“The Schedule 9 List II was amended in August 1976 to rename ‘Muslim Courts’ as ‘Syariah Courts’ and ‘Muslim Law’ as ‘Islamic Law’,” it pointed out.

 

Supremacy of Federal Constitution

 

The Council upheld the Constitution to be the ‘Supreme Law of the Federation’ as provided by Article 4(1), which states: “This Constitution is the Supreme Law of the Federation.

“This means, all other laws are inferior and they must conform to the Constitution, failing which they will be declared unconstitutional. Thus Syariah law and other laws are subject to this Constitution.

“It also means that this constitution is supreme and not parliament. Therefore, any law passed by Parliament that contravenes our Federal Constitution can be declared null and void by our courts.”

Citing the Indian Supreme Court case of Kesavananda Bharati versus the State of Kerala, the council believed that the court held that in any country where the constitution is supreme, there must be an implied restriction of the power of Parliament to change the basic structure of the Constitution.

“This case has been accepted by our Malaysian courts and the basic structure doctrine is being endorsed,” it added.

 

Act 355 affecting non-Muslims

 

The council stated firmly that the amendments to Act 355 would affect the non-Muslims, contrary to the assurance given by the government.

This view, according to the council, has been supported by many including the G25, which believed that the bill would lead to hudud – former Inspector-General of Police Tan Sri Rahim Noor had warned of PAS’ tactic to slowly push for hudud law; 284 Malay non-governmental organisations (NGOs) headed by Tan Sri Abdul Aziz Abdul Rahman, who said the Bill was unconstitutional; the US’ Emory University law professor Prof Abdullahi A An-Na’im who held the view that Muslims were not obliged to support hudud; and Perlis Mufti Mohd Asri Zainal Abidin who told the Muslims not to call for the formation of Islamic state or enforcement of Islamic laws.

The council’s open letter puts forth arguments asserting that the passing of Act 355 will affect non-Muslims.

First, the Kelantan Syariah Enactment Bill, passed in 1995 as amended, has by virtue of Section 56(2) of the Enactment, given option to non-Muslims to come under its jurisdiction.

“The option is clear violation of the Constitution, which has declared in List II Schedule 9 that Syariah Court has jurisdiction only on Muslims,” the council noted.

Secondly, a paper prepared by the Jakim Syariah Civil Technical Committee dated May 8, 2014, has proposed for hudud to be implemented in two stages – firstly, to involve amendments to federal and state Laws; secondly, to include education and promotion of the hudud implementation, and then apply it to non-Muslims.

According to the council, the passing of Hadi’s Bill appeared to be the first stage. It is, indeed, empowering hudud offences; hence rendering it a ‘Hudud Offences Bill’.

The council cautioned that the authorities and Hadi’s Bill supporters had called the Bill, ‘Act 355’ with the intention to package it in such a way that it appeared to be only enhancing the powers of Syariah Court, and no hudud offences were involved.

However, as Act 355 is a Hudud Offences Bill by nature, it would undermine the non-Muslims’ rights in the following ways:

1.            Under an Islamic theocracy, ‘God’s Law is Supreme’. This position will undermine the fundamental rights guaranteed to citizens.

2.            A non-Muslim cannot be a witness under Syariah law. In most hudud offences, the victim must produce four male Muslims of good character to give evidence on his or her behalf. Thus, a non-Muslim victim must rely on Muslim witnesses, although there may be scores of non-Muslim witnesses available.

3.            In rape cases, the burden is on the rape victim (women) to produce four adult male Muslim witnesses – which in most cases will be impossible. The experience of other hudud countries shows that such perpetrators would go free, while the victim could be punished for adultery.

4.            The Kelantan Syariah Criminal Enactment 1993 (2015) seems to recognise the fact that crime may be committed against non-Muslims by Muslims and vice versa when it provides in Section 56(2) that a non-Muslim can choose to come under the Syariah Enactment.

“This choice given by the Enactment is unconstitutional as jurisdiction is given by law,” the council said.

At this stage of the debate, the council footnoted that it understood Section 56(2) might be removed, but pointed out that there had been nothing to stop the Kelantan State Assembly from re-introducing it on the pretext of allowing non-Muslim victims to obtain justice in the Syariah Court.

 

Conclusion

 

The council has reminded all MPs of their oath to protect the Federal Constitution upon being elected and urged them to vote against the bill which is unconstitutional in its nature.

“Therefore, the MPs must attend Parliament sitting diligently and be guided by their oath of office in rejecting the Hudud Bill,” it stressed.

“Not-attending is not an option. It will be a serious mistake not to attend the parliamentary sitting – for if the Hudud Offences Bill is passed, it would affect all. One’s non-attendance will not be a defence. All must attend and help defeat Hadi’s Private Member’s Bill.”