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Sunday, 19 February 2017

Amendments arousing arguments

IT has been quite a busy week for those interested in the issue of amendments to the Syariah Courts (Criminal Jurisdiction) Act 1965, commonly referred to as RUU355.

The week started with a “How Much Do you Know About Hudud” forum last Sunday with eminent speakers and people from both sides of the divide giving their views. On Thursday, retired Court of Appeal judge Datuk Mohamad Ariff Md Yusof gave his views in a lecture at the Law faculty in Universiti Malaya (UM). And yesterday, those in support of and those against RUU355 held their separate rallies on the issue.

At his talk at UM, Mohamad Ariff said he has no doubts the amendments to RUU355 that PAS president Datuk Seri Hadi Awang put before Parliament in November are constitutional – but he has reservations about them because he fears abuse.

“Yes, they can do it constitutionally. But should it be done the way it is being done? No! I believe the upper limits are simply too high,’’ he says.

Hadi is proposing the fine for syariah offences be hiked up to a maximum of RM100,000 from the current RM5,000; the jail sentence be increased to 30 years from the present three years; and the number of strokes in whipping be allowed to go up to 100 instead of the current six.

For Mohamad Ariff, the current limits are already very high. He says, for instance, religious authorities are able to fine someone teaching religion without certification RM5,000 in some states and RM3,000 in others, which is already very high.

“What else do you want? Imprisonment for 15 years? What do you require a jail sentence of 30 years for? Or whipping? You don’t whip someone for teaching without a tauliah (accreditation)!’’

“If you don’t approach this in the right way, it can lead to all kinds of abuses.’’

Mohamad Ariff cited the case of an MP (Shah Alam MP Khalid Samad) who went to a surau to deliver a talk about the plight of people suffering in Gaza at the invitation of the surau: the religious authorities in the state went after him and (the Klang Lower Syariah Court) fined him RM2,900 for “teaching without accreditation’’.

“He was there to give a talk by invitation! And now this poor MP is going to lose his Parliament seat. This is a lesson to highlight this entire problem. You can create offences in the Syariah Court and increase upper limits but if you don’t approach it properly and you don’t have the right people to apply it, it can lead to all kinds of abuses.’’

(Under Article 48 of the Federal Constitution, an elected representative will lose his seat if he is convicted of an offence and fined RM2,000 or more, or receives a jail sentence of a year or more).

Mohamad Ariff also pointed out that when the maximum fine is low like at present and capped at RM5,000, the discrepancies for the offences are not so great from state to state.

“But if you have a RM100,000 limit, you can imagine what can happen!”

For him, it is just not logical to argue that there is a need to increase the upper limits by such a huge quantum solely on grounds that the Syariah Courts have been neglected all this while and need to be upgraded to the level of the Civil Courts.

He points out that the Civil Courts have to deal with the Penal Code and all kinds of offences, while the Syariah Courts have only limited jurisdiction.

And he says that the Federal Constitution makes it clear that the Syariah Court cannot encroach into areas covered by civil law and the Penal Code.

He believes the framers of the Federal Constitution would be simply “aghast” at what is happening with regards to syariah law and the direction the country is taking.

So, he says, civil society and “politicians of saner minds” should really ask for the justifications for the amendments to RUU355 and ask why the fines and punishments have to be so high?

“Don’t simply vote in favour of it just because it is constitutional.

“I have a feeling they (those pushing for the amendments) can’t justify it.’’

Mohamed Ariff notes that there is already some overlapping of criminal offences in the Penal Code with syariah law, for example laws regarding sodomy.

When there is such an overlap, he says, the offence under syariah law is probably invalid because the offence should be tried under the Penal Code.

“We have all the expertise, all the prosecutors necessary, the judges and everything else that can do justice. Can you trust the same to be done in the Syariah Courts?’’

He praises the Syariah Court for being good in dealing with family law.

He says it can improve its efficiency in dispensing justice in the areas of marriage, family and the inheritance laws of Muslims, “which are the staple of syariah personal laws of Malaysia, rather than being too preoccupied with imposing the harshest punishments for syariah criminal offences’’.

At the forum earlier in the week discussing “How Much Do you Know About Hudud’’, constitutional law expert Datuk Dr Shad Saleem Faruqi said, according to the law, Syariah Courts have powers over offences that are against the “precepts” of Islam but “sadly’’ the Federal Constitution doesn’t define what these precepts of Islam are.

“So many states are abusing their power by treating anything they like or don’t like as a precept of Islam.

“If you question a fatwa (religious edict), no matter how respectfully, that is a criminal offence. If you give a discourse on Islam without a tauliah (credentials) that is against the precepts of Islam.

“I don’t know which Islam we are talking about. It is not the Islam I was born into and not the Islam I practise. This is an attempt by some to arrogate a monopoly of power to themselves.’’

He says some of the religious laws the states are passing are being done very unthinkingly, citing as an example the law that stipulates that speakers need credentials from that state to be able to speak on religion.

“So if a lecturer gives a talk to a class on Islamic law, I am not sure if it is legal any more because they would need to be bertauliah (accredited by the state).’’

He says the tauliah law states that people can only discuss religion with their family at home.

“So if I am in a car with my family on the way to Kota Baru, I cannot talk about religion because that is not my house. Or if I am at home and someone by chance visits me, then I cannot talk because it is not just my family any more.

“This kind of law is unthinking and needs to be reviewed. It makes us look like fools! I don’t know how the law even got through!’’

Dr Shad says that syariah law is not a blank cheque for states to do whatever they want with in regards to religion, stressing that the power of states to punish Islamic crimes is subject to Federal control and must be conferred on the states by Federal law.

Which means that despite the Kelantan State Assembly passing the Kelantan Syariah Criminal Code Enactment (1993) and the amended Kelantan Syariah Criminal Code II (2015), the state cannot carry out punishments such as stoning, crucifixion, execution, or amputation because these are outside its jurisdiction.

For him, the Syariah Courts are supposed to punish offences that are relatively minor in nature such as khalwat (close proximity), drinking alcohol, abuse of halal signs; also, syariah offences must not be matters already in the Federal list.

“But unfortunately, most states are trespassing on the Federal Constitution by punishing crimes like homosexuality, incest, participating in lotteries, betting, and gaming which come under Federal law.’’

Dr Shad points out that some civil judges do not seem to know the Federal Constitution and they abdicate their responsibility to interpret and enforce the law whenever there is even “a smallest whiff of Islam”, even though it is clearly stated that when it is a matter concerning a Muslim and a non-Muslim, it has to go before a Civil Court because a non-Muslim is not eligible to go to the Syariah Court.

“Barring a few honourable exceptions, our courts get cold feet whenever there is an issue of Islamic law. They bend over backwards to expand the horizon of the power of the syariah parties.’’

Dr Shad believes that Hadi’s private member Bill is “clearly a clever attempt to revive the Kelantan Criminal Code II which has been lying dormant because of constitutional hurdles’’.

Saying that the punishment must be proportionate to the offences committed, he points out the penalties in Hadi’s motion calling for 100 lashes, 30 years jail, and a maximum RM100,000 fine are for some crimes that are victimless.

“If someone drinks, if someone doesn’t say his prayer, or doesn’t fast, there is no real harm to national security and public order.

“Some of the punishments in the Penal Code are lesser (for more serious crimes). But for not saying your prayers you can get 30 lashes!’’

He says experts in Islam will tell you that there is a difference between sin and crimes, and that not every sin needs to be criminalised – “This law (RUU355) tends to do that (criminalise every sin).’’

He says as this is a matter of national importance, it would be quite in line for the Malay Rulers as the heads of religion in their states to discuss the law and give direction.

Saying that he is all for genuine dialogue, Dr Shad notes that while the Quran is divine, the interpretations are human.

“As a student of law I have to say there is no word that is not capable of multiple interpretations. Those of us who are Muslims have a duty to paint our religion in the best possible light. So if there is an interpretation that is available that is kinder, gentler and more merciful, what’s the harm in trying to promote it?’’

(Dr Shad writes the fortnightly Reflections On The Law column in The Star.)

Related stories:

‘Muslims don’t need this right now’

NGO: Proposed amendments will affect all

Gathering more like a carnival than a rally

‘See amendments from Islamic context’

Tags / Keywords: Religion , Government , syariah law , civil court , fatwa , shad faruqi , datuk mohamad ariff

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