ADVERTORIAL

For other languages: Iban, Kadazan, Bahasa Malaysia

IT is the utmost contemptuous assault on our parliamentary democracy when parliamentarians are kept up until 5am on April 6, 2017 to clear government bills just to give member of parliament for Marang, Datuk Seri Abdul Hadi Awang, the opportunity to table his private member’s bill to amend the Shariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), “RUU355” at noon on the same day, which was the final day of the Parliamentary sitting.

While the speaker halted the debate after speeches by Hadi and his colleague from Kota Baru, the bill is far from dead. Hadi will continue to pursue the bill, the proponents will continue slamming the opponents either for “betraying Islam” (if they are Muslims) or “anti-Islam” (if they are non-Muslims) and until it is adopted, it will be tabled in every parliamentary sitting and stands the chance to be fast-tracked by a minister. It is therefore important for Malaysians to take a categorical stand against the bill, and here’s why.

Proponents of RUU355 and the larger agenda of shariah expansion have framed their cause in the language of Malay-Muslim nationalism and decolonisation. They argue that the common law legal system that Malaysia has inherited from British rule is a foreign imposition, whereas shariah laws were the legal order for the Malacca sultanate and the succeeding Malay kingdoms.

They contend that expanding shariah laws is cleansing Malaysia from colonial legacies and restoring Muslims’ sovereignty, whereas preserving the common law system is a sign of prolonged mental colonisation. Hadi, in his famous “Amanat Hadi” in 1981, had denounced Barisan Nasional for preserving “a colonial constitution, infidel laws and pre-Islamic rules”.

The proponents further contend that the criminal jurisdiction of the Shariah Court, which is currently limited to a maximum of three years’ imprisonment, RM5,000 fine and six strokes of the whip (the 3-5-6 cap), and is lower than that of First Class Magistrates (five years’ imprisonment, RM10,000 fine and 12 strokes of  the whip), is unacceptable as it places the Shariah Court in an inferior position; and it is, therefore the duty of every Muslim to elevate the position of the shariah courts to equate if not to overtake the civil courts. They further assert that the bill is unrelated to hudud punishments and does not involve the non-Muslims, who therefore should stay out of the debate.

We would like to refute such arguments.

First, Malaysia was formed in 1963 as a federation of an independent state known as the Federation of Malaya (a former British protectorate) and three British colonies, namely, North Borneo (later known as Sabah), Sarawak and Singapore. Not only was the Federation of Malaya established as a secular federation where Islam as the “religion of the Federation” plays only ceremonial roles, but more importantly, Sabah and Sarawak, which have never been part of the “Negeri-Negeri Melayu”, proudly embrace their diverse ethnic and religious heritage. Therefore, Malaysia is neither an expansion of the Persekutuan Tanah Melayu, nor is it meant to be a restoration of the Malacca sultanate ruled by shariah law.

Instead, Malaysia is a secular federation with the rule of law grounded on the common law heritage. Neither the Federal Constitution nor the common law legal system is un-Islamic. They are what made Malaysia possible in 1963 and viable today.

Lest we forget, religious freedom was stressed on and assured in the merger negotiations of Malaysia. hudud punishments were never placed on the agenda. Had hudud punishments been on the cards, the Malaysia project would have likely been rejected by the peoples of Sabah and Sarawak. The spirit of the Malaysia Agreement 1963 (MA63) and the Federal Constitution – the two statutes that constitute the social contract of our nation’s founding – must be respected and upheld.

Second, secularism means the legal system must be predominantly based on general laws applied to all citizens while religious or customary laws may be used for personal and family matters for members of specific communities. The Ninth Schedule of the Federal Constitution provides that criminal justice shall be administered by the civil courts while allowing the states  to “create and punish offences by persons professing the religion of Islam against the  precepts of that religion, except in regard to matters included in the Federal List”. The 3-5-6 cap provided by Act 355 – enacted in 1965 and amended in 1984 – is commensurate with the limited scope of shariah offences and therefore befitting the secular design of our Federal Constitution.

The new limits proposed by Hadi’s Bill – 30 years’ imprisonment, RM100,000 fine and 100 strokes of the whip (the 30-100-100 cap) – are almost approaching the criminal jurisdiction of the Sessions Court  all punishments permitted by law except the death penalty.

When a severe crime such as robbery can only be punished by the Sessions Court with a maximum jail term of 14 years and fine or whipping, what religious offences committed by Muslims should be slapped with 30 years of imprisonment, a RM100,000 fine and 100 strokes of the whip?

Where is the principle of proportionality so central to criminal justice?

Third, it is a blatant lie to claim that Bill 355 B has nothing to do with the introduction of hudud punishments. If passed in its current form, the bill will immediately enable three hudud punishments in the shariah criminal laws of Kelantan and Terengganu – 100 strokes of the whip for fornication, 80 strokes for unsubstantiated accusation of adultery or sodomy (qazaf) and 40 to 80 strokes for consumption of alcohol. Together with the disproportionality of offences and punishments, the introduction of these three hudud punishments will qualitatively alter the secular nature of the legal system. It is not only unconstitutional, but also erodes the moral foundation of Malaysia as a secular federation.

Fourth, at the heart of shariah are justice, compassion and human wellbeing, not the communal pride of Muslims. There is no conflict between the universal quest for justice and Islam that promises “blessings to the universe” (Rahmatan lil alamin). Noble efforts to advance shariah justice should focus on the attainment of the higher purposes of shariah (Maqasid Syariah) and not on an obsession to maximise punishments, often in complete disregard of temporal contexts.

Shariah courts can and should be strengthened in many aspects, from personnel to judicial processes to enforcement of sentences. Instead of discrediting our common law legal system as “infidel” and expanding the shariah courts’ power as a project of communal pride, efforts should be put into introducing relevant and universalist ideas from Maqasid Syariah into our legal thoughts to make our laws more just and compassionate.

Fifth, the propaganda that Bill 355 will not affect non-Muslims is also misleading and deceitful. When disputes arise as to whether someone is a Muslim or not, the civil courts abdicate jurisdiction to the shariah courts. We have many instances of the Orang Asli and natives being falsely registered as Muslims. There are forced conversions of non-Muslim children in orphanages. There are unilateral conversions to Islam of children of non-Muslim marriages where one party converts to Islam.

There are cases of body snatching of deceased persons because the religious authorities claim, despite overwhelming contrary evidence, that the deceased was Muslim. Conversion to Islam is easy. Apostasy out of Islam is almost impossible. In such a state of affairs it is difficult to argue that shariah laws will not affect non-Muslims.

Sixth, the debates on the implementation of shariah must therefore be kept open and dissidents must not be labelled as “hostile infidels” or “apostates”. Moratorium on hudud and other corporal punishments in today’s world, as advocated by prominent theologian Tariq Ramadan, must be recognised as a legitimate view. If opposition to RUU355 cannot be even tolerated today, what room for dissent will there be tomorrow after its passage?

We call upon all Malaysians to defend Malaysia as the secular federation our forefathers founded and intended it to be in 1963. We categorically reject the “divide and rule” tactic employed by certain quarters. The propaganda that RUU355 will affect only the peninsula because Sabah and Sarawak will not implement hudud punishments is misleading and deceitful. It ignores the fact that hundreds of thousands of Muslims from Sabah and Sarawak study, work, live in or travel to Peninsular Malaysia.

Once the bill is passed, they will not be exempted from the three hudud punishments in Kelantan and Terengganu or the maximum punishments of 30 years’ imprisonment, RM100,000 fine and 100 strokes of the whip.  It is more than likely that these will be followed by other peninsular states. The only parties exempted from shariah law are the Yang di-Pertuan Agong and the Malay rulers by way of the Special Court under Article 182, not the Muslims of Sabah and Sarawak.

The founding fathers of Sabah and Sarawak did not sign up for a federation where personal religious misconduct of Muslims could be punished far more heavily than they would be for robbery. To insidiously alter the contract of marriage after 54 years unilaterally with an ill thought-out bill is morally wrong and politically disastrous. Those who risk undoing the Federation of Malaysia for their short-term electoral gains will be condemned for posterity.

For Malaysia’s sake, and to preserve our country as a secular federation, we must say “no” to RUU355.

Signatories:

Tan Sri Datuk Seri Panglima Simon Sipaun, former State Secretary, former Suhakam vice-chairperson, Sabah

Datuk Dr Johan Arriffin A. Samad, former Deputy Director of Yayasan Sabah, G25 member, Sabah

Datuk Amin Satem, G25 member, Sarawak

Datuk Donald Peter Mojuntin, Secretary-General of UPKO, former Assistant Minister of Finance, Sabah

Datuk James Ligunjang, former State Assemblyperson, Sabah

Datuk Jema Khan, former State Youth Chief of UMNO, Businessman, Sabah

Datuk Stan Yee, former president of Kota Kinabalu Municipal Council, Sabah

Datin Fazar Arif, Sabah

YB Baru Bian, State Assemblyperson for Bakelalan, State Chief of PKR, Sarawak

Haji Amde Sidik, Deputy President of SAPP, Academic, Sabah

Haji Ramlee Dua, former State Assemblyperson, former District Officer, Sabah

Adrian Yong, former Company CEO, Sabah

Asgari Stephens, G25 member, Businessman, Sabah

Jannie Lasimbang, State Women Chief of DAP, former Suhakam Commissioner, Sabah

Karen Shepherd, Sarawak 4 Sarawak activist, Writer, Sarawak

Kartina Salleh Sulong, Lawyer, Sabah

Marinah Harris Salleh, Businessman, Sabah

Peter John Jaban, Sarawak 4 Sarawak activist, Sarawak

Valentine Willie, Former President of Sabah Law Association, Sabah

Zahir Ahmad, former company CEO, Sabah