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Published: Wednesday March 18, 2015 MYT 1:34:00 PM
Updated: Thursday March 19, 2015 MYT 10:20:09 PM

PAS' hudud push

My views on Hudud 2.0

I am reproducing parts of an article I wrote on 30th April 2014 on PAS’ push for PAS' hudud and I have updated parts of it to reflect the changes that have taken place in the past 11 months.

Malaysia has once again been thrown into a political vortex and the credit this time goes to Parti Islam Se-Malaysia (PAS) who are presenting before the State Legislature of Kelantan on Wednesday, 18th April 2015 a bill to amend the Shariah Criminal Offences (Hudud) Enactment 1993 and pave the way for the implementation of Islamic criminal law in Kelantan.

This would be another first for Malaysia because PAS’ evangelical push has taken most political actors by surprise and this especially so for their own partners in Pakatan Rakyat.

Before we go into the legality of the proposed Hudud Enactment, it is prudent for the position of Islam, vis-à-vis the Federal Constitution (FC) to be clarified and elucidated.

The Malaysian Constitution and the position of Islam

Malaysia is neither a theocratic state nor it is a fully secular state like Turkey or India. I say this because the FC states that Islam is the religion of the Federation (Article 3) and also prohibits the propagation of non-Islamic doctrines amongst Muslims in Malaysia (Article 11(4)).

Hence, Islam enjoys a protection within our constitutional framework that other religious groups do not, but it does not in any way place Islam above any other religion because Article 3 provides for an incontrovertible guarantee that “other religions (besides Islam) may be practised in peace and harmony in any part of the Federation”.

Our Constitution is secular and the best description of our governance model is one that is secular based. A good example of a theocratic state would be Iran, and the Iranian Constitution of 1979 unambiguously reinforces this. Article 1 of the Iranian Constitution of 1979 states that: “The form of government of Iran is that of an Islamic Republic” while Article 2 explains this to mean, among other things, “the necessity of submission [to Allah]" and the “fundamental role” of “divine revelation” in “setting forth the laws.” Meanwhile, article 56 states that “absolute sovereignty over the world and man belongs to God".

A further example of an Islamic theocratic state is Maldives; in 2008, Maldives adopted a new constitution that states, inter alia, in order to be a citizen of Maldives, one has to profess the religion of Islam (Article 9(d)) and all laws have to be based on Islam and any law that is contrary to any tenet of Islam cannot be enacted in Maldives (Article 10(b)).

Malaysia’s constitution does not have such provisions; hence I am baffled by the attempts of certain quarters that maintain that Malaysia is an Islamic state. A year after Independence, on 1 May 1958, then–Prime Minister Tunku Abdul Rahman clarified this in the Legislative Council, saying, “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 shall be the official religion of the state.”

Again on his 80th Birthday, the Tunku reiterated, “the country has a multi-racial population with various beliefs. Malaysia must continue as a secular state with Islam as the official religion”.

Malaysia is a fully functional secular-based constitutional monarchy with Islam as the religion of the Federation. In coming to this assertion, I am aided by the decision of the Supreme Court of Malaysia in the case of Che Omar bin Che Soh v Public Prosecutor (1988), that the term “Islam” in Article 3(1) of the Federal Constitution meant “only such acts as relate to rituals and ceremonies… the law in this country is… secular law”.

Secular laws for a multi-religious country

Malaysia enjoys a sterling tradition as a multi-religious country. For centuries Muslims, Buddhists, Christians, Hindus and others have lived in peace and harmony.

Our criminal laws and criminal justice system is secular and must remain secular because any attempt to change this would be tantamount to dismembering the basic structure of our constitution.

The doctrine of basic structure finds its origins in the Indian Supreme Court decision in the case of Keshvanand Bharti v State of Kerala (1973). The Indian Supreme Court “struck a bridle path by holding that in the exercise of the power conferred by Art 368 (the article that lays down the procedure for amending the Indian Constitution), the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution”. Employing the sagacious logic of the Indian Supreme Court, I would argue that the Federal parliament or any State Legislature cannot pass any law that will alter the basic structure of our FC. The Federal Court must also be ready to exercise its powers as the defender of the FC and unwind any attempt to alter the basic structure of our country.

The administration of the criminal justice system and the powers to enactment criminal laws is clearly the purview of the Federal Government (List I, 9th Schedule of the FC). Part 4 (e)(ii) of List 1, 9th Schedule states that:

“Civil and criminal law and procedure and the administration of justice, including –

(e) subject to paragraph (ii), the following:

(i) contract; partnership, agency and other special contracts; master and servant; inns and inn-keepers; actionable wrongs; property and its transfer and hypothecation, except land; bona vacantia; equity and trusts; marriage, divorce and legitimacy; married women’s property and status; interpretation of federal law; negotiable instruments; statutory declarations; arbitration; mercantile law; registration of businesses and business names; age of majority; infants and minors; adoption; succession, testate and intestate; probate and letters of administration; bankruptcy and insolvency; oaths and affirmations; limitation; reciprocal enforcement of judgments and orders; the law of evidence;

(ii) the matters mentioned in paragraph (i) do not include Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate.”

Criminal laws was made a provenance of Parliament because there must always be uniformity of criminal laws and our criminal justice system cannot afford multiple systems on laws based on preference. Article 75 of the FC unambiguously states that in the event there is any conflict between a federal and state law, federal law will prevail.

Hudud is also inconstant with Article 8 of the FC, the equality article, because we cannot have Muslims subjected to one form of punishment and non-Muslims subject to another form of punishment. In the case of hudud, those convicted of theft will have their limbs amputated but under our present, secular, criminal justice system, those convicted of theft will have to serve a custodial sentence.

Furthermore, how will the authorities seek to investigate and charge a suspect when there are two sets of criminal laws when the assailant is a Muslim and the victim a non-Muslim or vice versa? Non-Muslims by law do not have to appear before any Shariah court because it has no jurisdictions over non-Muslims. These sticky jurisdictional issues must be also factored into consideration to avoid a repeat the legal imbroglio that has followed the amendment to Article 121 of the FC.

While some have argued that hudud is an entity of Islam and should hence come under the State’s List (List II, 9th Schedule), it is important to note that the State’s List grants powers to State Legislatures to enact laws: “1. Except with respect to the Federal territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.”

Hence, there is no provision for any enactment of criminal laws, whether Islamic or otherwise, by any state legislature because the administration of the criminal justice system is part of the Federal List unless Parliament expressly confers the power to legislate on matters that come under the Federal List to a state legislature under Article 76 of the FC.

The Article 76 of the FC Route

However, it is said that our FC is a paragon of compromise. It is indeed and that is why Article 76 of the FC allows Parliament to give power to the states to legislate on matters that are part of the Federal list. If Parliament confers this power on the Kelantan State Legislature and provide for the implementation of Islamic criminal laws, it is my fear that we are opening a door we cannot close because every state will then use this as precedent to demand they be given the power to legislate on competences that do not originally belong to them. This will be akin to upending the federal nature of our country and allow states to petition Parliament to make laws based on their whims and fancies with complete regard for the basic structure of our Federation and Constitution.

Conclusion

I have no intention of wading into the beliefs of any religion – every religion possess its own system of laws in varying degrees – but as a matter of principle and to safeguard the supremacy and integrity of the Federal Constitution, we must strive to defend our secular nature.

Any form of theocratic criminal law is anathema to our long-standing tradition of religious harmony given the significant number of issues that already seek to divide us, and to further divide us on the basis of religion will be the most painful of all. I would dare say that an unbridled push for hudud may even lead to the balkanisation of Malaysia on the basis of religious lines.

All politicians must think and act as Malaysians, with the welfare of all Malaysians on their mind and oppose any attempt to enact Hudud laws. I am proud that my party has made a clear and unequivocal stand on the matter. We are not opposed to any religion but we are compelled to defend the sanctity of the Federal Constitution and our diverse way of life. It also does not augur well for the resounding minority in this country if the majority imposes their way on life on them, whether directly or indirectly.

> The views expressed are entirely the writer's own.

Tags / Keywords: PAS, Kelantan, hudud, opinion

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