COMMENT Members of Parliament, on being elected as members of the House of Representatives (Dewan Rakyat), have to swear the following oath “...that I will faithfully discharge my duties as such to the best of my ability, that I will bear true faith and allegiance to Malaysia and will preserve, protect and defend its constitution”.
The MPs must bear this oath in mind when deliberating on the Private Member's Bill introduced in Parliament recently by PAS MP for Marang Abdul Hadi Awang.
The bill seeks to amend Syariah Courts (Criminal Jurisdiction) Act 1956 and is intended to extend the power of the syariah court to be able to implement the Kelantan Criminal Enactment (II) 1993 which provides for hudud punishments detailed in the Kelantan Enactment 2015 and include theft, rape, sodomy, etc.
Gabungan Professor Negara is reported to have said the proposed Private Member's Bill is not about hudud law and that the word 'hudud' (Islamic penal code) is not mentioned in the bill.
It is true that the word 'hudud' is not mentioned in the proposed bill but the aim of this bill is to empower the 'Kelantan Syariah Criminal Enactment (II) 1993 amended in 2015' to impose hudud punishments.
Thus, the aim of the Private Member's Bill is to empower states to be able to pass enactments implementing syariah laws and providing for hudud punishments.
M'sian history on hudud
Appended below are historical documents and evidence that Islamic laws (other than provided for in the Ninth Schedule List II) and hudud punishments were never intended for Malaysia:
1) The Alliance Memorandum submitted jointly by Umno, MCA and MIC to the Lord Reid Commission in 1965 specifically stated that they wanted a secular state, although the religion of the state was to be Islam.
“The Religion of Malaysia 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) The Lord Reid Commission report similarly recommended that although Islam was to be the state religion, it did not imply that the state is not a secular state (paragraph 169 of Reid Report).
3) The White Paper issued by the British government in June 1957 re-confirmed that the inclusion of the declaration that Islam is the religion of the federation, “will in no way affect the present position of the federation as a secular state” (paragraph 57 of the White Paper).
4) Letter dated May 31,1957 written by the colonial secretary (Lennox Boyd) to Lord Reid: “...changed their tune about Islam and the government presented a united front in favour of making Islam a state religion even though Malaya is to be a secular state” (cited in Stockwell op cit page 388).
5) The Cobbold Commission report 1963 again reiterated the secular nature of the new federation comprising Malaya, Sabah, Sarawak and Singapore.
6) The 20-point consensus agreement for Sabah and the 18-point consensus agreement for Sarawak. The first point of agreement was that there will be no state religion for Sabah and Sarawak.
7) Tunku Abdul Rahman, who was deeply involved in the drafting of the Federal Constitution and the attainment of independence for Malaya on Aug 31, 1957, had clearly stated on a number of occasions that Malaysia was a secular state and not an Islamic state, including during debate in the Federal Legislative Council in 1958: “...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”.
Our first prime minister and the founding father Tunku Abdul Rahman also stated clearly that "Malaysia was set up as a secular state with Islam as the official religion” (The Star, Feb 9, 1983 under heading “Don’t make Malaysia an Islamic State”).
8) There appears to be no historical document to contradict the fact that Malaysia was intended to be a secular state.
The Federal Constitution by Article 74 gave power to Parliament to make laws with matters enumerated in Federal List or the concurrent List ( that is, the First or Third List in the Ninth Schedule). The Federal List in List I placed “civil and criminal law and procedure and the administration of justice” under Federal List only. There was no similar criminal law jurisdiction given to the states in the State List.
The State List only gave power to states over minor criminal offences and this excluded hudud offences, and these hudud offences are included in the Federal Penal Code.
9) The most telling factor is that the words “Syariah courts” and “Syariah laws” are not found in the Federal Constitution promulgated in 1957.
This proves syariah law was never in the contemplation of the framers of the constitution and the constitution was based on secular laws.
Thus, all parties wanted the country to be secular.
It was only 19 years later that the Federal Constitution was amended in August 1976 to rename “Muslim courts” as “Syariah courts” and “Muslim law” as “Islamic law”.
Thus, this is the first encroachment of syariah law into the constitution.
Encroaching on non-Muslims
In view of the above, any proposal in the Private Members Bill to give power to the states to enable them to implement hudud (against) offences, such as theft, robbery, sodomy, etc would be unconstitutional.
This is because these are already offences included in the Federal List and the Federal Penal code. These hudud offences are not included in the State List.
The next question considered is whether hudud will impact non-Muslims. The clear answer is “Yes”. Here are the reasons why:
1) The cases of Moorthy, Indira Gandhi, Deepa, Subashini, conversion of minors, etc show that even before hudud is implemented, the Islamic law is seeping into non-Muslim affairs.
2) Article 4 declares the Federal Constitution to be supreme, but we have PAS leaders declaring that God’s law is supreme. Thus once hudud is fully implemented, the religious and fundamental rights of non-Muslims will be affected.
3) In several Syariah offences for which hudud is meted out as punishment, the victim must produce four male Muslim witnesses who are of good character. If the victim is a non-Muslim and the offender is Muslim, then what happens or vice-versa?
4) In other countries where hudud is implemented, the non-Muslims do not have equal rights and religious freedom. If hudud is introduced in Malaysia, then the same likelihood is to happen here.
5) Our country is built on parliamentary democracy and if hudud law is implemented it would undermine the basic structure of the constitution and be an attack on the core of the constitution. This will also mean an attack on social contract agreed to by our forefathers and embodied in our constitution.
There are assurances given by our leaders that hudud will not affect non-Muslims and some even say it has nothing to do with non-Muslims.
The above points show how hudud will impact non-Muslims.
Any assurances given by leaders will remain assurances only.
Therefore, the proposed law must be studied for its impact and no reliance should be placed on promises made.
In the past, even assurances given in writing have been found to have been broken.
The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) had issued a booklet dated June 26, 2014 on hudud and alerted Malaysians to the fact that various assurances would be given in order to push the hudud agenda so that they are lulled into inaction and listed them as follows:
(1) That it will not affect non-Muslims.
(2) That there will be no amendments to the Federal Constitution.
(3) It’s God’s law, Muslims must accept it.
(4) That Muslims desire to be governed by Syariah law of which hudud is an integral part (although no reputable census has been carried out).
Make Jakim plan public
The Malay Mail Online on Sept 6, 2014 under heading “Hudud should apply to all Malaysians, Jakim Paper suggests”, informed that a Islamic Development Department of Malaysia (Jakim) technical committee had proposed that hudud be implemented in stages.
In the first stage, each state’s syariah criminal offences enactments to be amended “to prescribe hudud punishments for four offences: zina (illicit sex), alcohol consumption, apostasy and making unproven accusations against zina”.
According to the paper, the “other hudud and qisas crimes such as theft, highway robbery, murder and causing physical harm were not included”.
This could not yet be implemented “as Malaysia is currently under local and international scrutiny for it’s human rights record".
The second stage includes “education and promotion of hudud implementation”.
This is when “the implementation of any syariah laws which will also apply to them (non-Muslims).
We now appear to be at the first stage of implementation.
The BN Backbenchers' Club was given this Jakim paper prior to its expose by the Malay Mail Online.
Here the BN Backbenchers' Club members are duty-bound to make the Jakim paper public so that Malaysians can know the true picture and that ultimately hudud is planned to be extended to cover non-Muslims.
The Malay Mail Online had quoted the Jakim paper as saying, “The paper cited as evidence Article 3(1) in the constitution that states Islam as the religion of the Federation and the oath of office of Yang di-Pertuan Agong requiring the ruler to 'protect the religion of Islam'".
The Jakim reading is perverse as it states only a half-truth.
According to the half-truth, the Yang di-Pertuan Agong is to protect Islam and thus to ensure syariah law is implemented, whereas the Yang di-Pertuan Agong’s oath begins with “we shall justly and faithfully perform our duties in the administration of Malaysia in accordance with its laws and constitution which have been promulgated...”
The oath of protecting Islam comes after this.
Thus, a proper reading of the oath will show that the Yang di-Pertuan Agong will carry out administration in accordance with the laws and constitution and to defend the religion of Islam as stipulated and in accordance with the Federal Constitution.
The constitution, being supreme, (thus) only Islamic law that is permitted by the constitution which is stated in the State List II, could be implemented and not hudud.
The ruling coalition should discuss the Jakim paper openly and hold a national referendum on the subject of hudud implementation.
On such an important issue as above, the Private Member's Bill should not have been allowed to be tabled.
There has to be a prior, thorough discussion by all stakeholders on the matter.
We must take heed of our first five prime ministers who did not support PAS’ attempts to implement hudud law.
Our fourth prime minister Dr Mahathir Mohamad had in 1994 warned the PAS Kelantan government to not unilaterally try and pass state enactment to implement hudud law, which he said would be unconstitutional.
The MPs, therefore, must come together to honour their oath and defend our Federal Constitution which has guided us so well in the past.
All defenders of the Federal Constitution must come together.
The issue of the Jakim paper proposing hudud laws must be taken up by the ruling coalition partners and effective steps taken to stop the second stage proposed by Jakim against non-Muslims so as to preserve our unity and harmony that have existed in our country for so long.
JAGIR SINGH is the vice-president of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST).
Source: https://www.malaysiakini.com/news/343928#ixzz4AUTzXGGJ
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