I have written extensively on PAS’ push for the implementation of Islamic criminal law in Kelantan. I find myself writing on it once again because of the tabling of a Private Members’ Bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965.
The Private Members’ Bill was tabled by PAS’ president Datuk Seri Hadi Awang. Hadi wants to include a new section 2A into Act 355 that will bestow Syariah criminal courts with near unfettered sentencing powers to facilitate the implementation of Islamic criminal law in Kelantan.
There can be so absolute powers. The new section 2A does not talk about limits on term of imprisonment, whipping and theoretically, provides for the amputation of limbs as a sentence because it gives the Syariah courts open-ended powers to sentence.
My party as well as MCA, MIC and SUPP have all protested that the amendment is unconstitutional.
Gerakan president Datuk Seri Mah Siew Keong in his statement stating the party’s opposition to the amendments put it like this: “The amendments seek to bestow on the Syariah Criminal Court’s absolute power to sentence any individual professing the Islamic faith who has committed not only crimes against the precepts of Islam but any such laws passed and enacted by any state legislature that imposes punitive measures in line with Islamic doctrine. Such unfettered sentencing powers bestowed on the Syariah Criminal Court are against the laws of natural justice as all laws must have limits.”
Article 8(1) of the Federal Constitution provides that “all persons are equal before the law and entitled to the equal protection of the law”.
The sustenance of the Malaysian nation must be anchored on fairness, equality, consistency and uniformity of laws, and this must extend to the enforcement of such laws and the form of punishment. The punishment and sentencing must also be equal and consistent for all affected persons in Malaysia.
PAS also seeks to use surreptitious means to facilitate the implementation of Islamic criminal law in Kelantan.
Part 1, List 2 of the 9th Schedule clearly states “…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.”
Criminal law as embodied in the Penal Code is already part of Federal Law. Thus, no state can legislate on this matter except if it receives a fiat from Parliament under Article 76A of the Federal Constitution. Further it is intellectually dishonest of PAS to use the term “offences against the precepts of Islam” as a means to enact criminal law.
The problem with PAS is has always found it hard to play by the rules.
The Federal Constitution is our document of destiny; it has kept us going in good times and bad. It is a grand bargain that embodies the hopes and aspiration of Malaysia’s diverse ethnic and social milieu and it ensures that no one gets everything but everyone gets something.
In crafting such a seminal document, political comprises are always inexorable. Our forefathers did not just give us a set of laws to govern ourselves but ensured that the law recognised Islam’s special place in Malaysia’s history, ensured there is freedom to adhere to and practise all faiths, endowed us with rights that ensure we are a free people, and cured historical injustices of colonisation inflicted on the Bumiputras.
At the advent of Malaysia, most pundits and forecasters opined that the Malaysian project would fail. Far from failing, we have thrived in this spirit of concord and consensus.
DAP’s attempts post 12th general election to ensure PAS becomes part of the political mainstream to satisfy its thirst for power has brought us to this point.
DAP must withdraw from the Selangor state government and repent for its political association with PAS.
Malaysia can ill afford dual and parallel legal systems: one for Muslims and one for non-Muslims.
Crimes do not discriminate nor differentiate. What if the criminal is a Muslim and the victim a non-Muslim, or vice-versa? How will it work then?
There are already a number of legal conflicts arising from Article 121(1A), especially involving conversion and custody of minor. Does PAS really want to open a new fault line?
The time has come to reject any attempt to undo the spirit and letter of the Federal Constitution, and we must collectively stand firm and defeat PAS’ attempt to alter the basic structure of Malaysia.> The views expressed are entirely the writer’s own.