Amendments must be in line with the Constitution


  • Making Progress
  • Friday, 02 Dec 2016

I HAVE previously written about the attempts by PAS president Datuk Seri Abdul Hadi Awang’s to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 [Act 355].

Initially, the proposed amendments provided for the implementation of death sentences by Syariah Criminal Courts (SCC). Later this was removed. Its most current version of the proposal includes raising the bar of sentencing for the SCC to 30 years imprisonment, 100 lashes of the rotan and a fine of RM100,000.

Again, I have argued, that the philosophy and reason for the amendments have not been articulated in a manner that convinces me that the ceiling on sentencing should be raised so high that theoretically a Muslim individual can be lashed 100 times for consuming alcohol.

The Federal Constitution is our most seminal guide to nation building and it is our document of destiny. It must be respected in its totality. Our founding fathers and the framers of the Federal Constitution were very smart. They were discerning enough to know that there would come a day when some people might seek to upend Malaysia's secular nature. Hence in drafting Article 3 (religion of the Federation) of the Federal Constitution they included a proviso which states: "Nothing in this Article derogates from any other provision of this Constitution."

So, Hadi has to be aware of his constitutional obligations and be fully concerned with Part II of the Federal Constitution (Fundamental Liberties) and ensure that his proposed amendments to Act 355 do not contravene the guarantee of fundamental liberties.

Hadi, after proposing the amendments in Parliament last week, cautioned non-Muslims lawmakers that if they continue to oppose the amendments to Act 355, they would meet a similar fate as Basuki Tjahaja Purnama @ Ahok, the popular governor of Jakarta who has been charged with blasphemy for quoting verses of the Quran to answer his critics. This is a veiled threat.

In 1988, Gerakan and other Barisan Nasional component parties supported the Constitutional Amendment Bill. This support was based on former prime minister Tun Dr Mahathir Mohamed's assurance that the inclusion of Article 121(1A) into the Federal Constitution would merely separate the jurisdictions of the civil and Syariah courts. However, this could not be further from reality and the inclusion of the Clause has led to a number of legal messes, especially in cases involving conversion to Islam.

We are yet to resolve which court (Syariah or civil court) takes precedence in the event of a conflicting decisions by the civil and Syariah courts.

Thus, the trepidation of Gerakan, MCA, MIC and others over the amendments to Act 355 should be understood. We simply seek clarity and safeguards to ensure no new fault-lines emerge.

Hadi’s initial intransigence on placing upper limits on the sentencing powers of the SCC lead to suspicions that it was a cloaked attempt to widen the court's powers to facilitate the implementation of Islamic criminal law in Kelantan.

Further, the timing was equally suspect as the amendments were preceded by the passing of the Kelantan Syariah Criminal Code 1993 II (Amendment 2015).

For example, the offence of khamar (consuming alcohol) in the Enactment attracts a sentence of between 40 to 80 lashes up from the current six strokes under Section 25 of the Syariah Criminal Offences (Kelantan) Enactment 1985 [1985 Enactment].

I am, however, relieved that Prime Minister Datuk Seri Najib Tun Razak in his opening address at the 2016 Umno General Assembly announced that the Government would assume control of the amendments and that there will no be "duality" when it comes to punishments. This assurance will prevent the amendments from being used to implement Islamic criminal law in Kelantan.

In line with Najib's assurances, I believe that the sentencing powers of the Syariah Court can be reviewed as authorities see fit, but it must be done in consonance with settled constitutional and legal principles.

Sentencing, in my opinion, should move away from pure retribution towards rehabilitation.

I believe my party will support any amendment that is in line with the Federal Constitution and which will further the founding aims and objects of this nation.

The proposed Parliamentary Select Committee by Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi should continue as well and include both Muslim and non-Muslim Members of Parliament. This can serve as a template for addressing similar situations in future, especially when conflict of laws is concerned

Gerakan president Datuk Seri Mah Siew Keong has announced that my party will support the formation of the Select Committee and is ready to be part of it as well.

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

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