Sabah and Sarawak leaders: Reject Hadi’s Bill – The Star Online 8 May 2017
Prominent leaders in Sabah and Sarawak have refuted claims that amendments to the Syariah Courts (Criminal Jurisdiction) Act, or RUU355, will not affect non-Malays and Muslims in the two states.
Writing in an open letter, they urged the people to preserve the country as a secular state and to reject Datuk Seri Abdul Hadi Awang’s Private Member’s Bill to amend RUU355. The letter, signed by 20 leaders including politicians, former civil servants and the G25 group of eminent Malays, was made available in four languages – English, Malay, Kadazandusun and Iban.
Malaysia, they said, was founded together with Sabah and Sarawak as a secular federation, in which Islam as the “religion of the federation” only played a ceremonial role.
“Lest we forget, religious freedom was stressed 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,” they added.
Introducing hudud, they warned, would breach both the Malaysia Agreement 1963 and the Federal Constitution…“Together with the disproportionality of the offences and punishments, the introduction of these three hudud punishments (in Kelantan and Terengganu) will qualitatively alter the secular nature of the legal system,” they said. Sabahan and Sarawakian Muslims working and living in Peninsular Malaysia would also be subjected to hudud, they added…
“For Malaysia’s sake and to preserve our country as a secular federation, we must say no to Bill 355,” they said.
FULL STATEMENT GIVEN BELOW:
For Malaysia’s Sake, No to Hadi’s Bill – The Star Online 8 May 2017
IT was a contemptuous assault to our parliamentary democracy when Parliamentarians were kept up until 5am on April 6, 2017, the final day of the Parliamentary sitting, to clear government Bills just to give Marang MP Datuk Seri Abdul Hadi Awang the opportunity to table his Private Member’s Bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) at noon.
While the Speaker halted the debate after speeches by Abdul Hadi and his colleague from Kota Baru, the Bill is far from dead. Abdul Hadi will continue to pursue it, the proponents will continue slamming the opponents either as “betraying Islam” (for Muslims) or “anti-Islam” (for 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 is why.
Proponents of Bill 355 and the larger agenda of Syariah 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 Syariah laws were the legal order for the Malacca Sultanate and the succeeding Malay kingdoms.
They contend that expanding Syariah laws is cleansing Malaysia from colonial legacies and restoring Muslims’ sovereignty, whereas preserving the common law system is a sign of prolonged mental colonisation. In his famous Amanat Hadi in 1981, Abdul Hadi had denounced Barisan Nasional for preserving “colonial constitution, infidel laws and pre-Islamic rules”.
The proponents further contend that the criminal jurisdiction of the Syariah Court, which currently is limited to a maximum of three years imprisonment, RM5,000 fine and six strokes of the whip (the 3-5-6 cap), 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 Syariah Court at an inferior position; and it is therefore the duty of every Muslim to elevate the position of the Syariah 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 Syariah laws. 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 till today.
Lest we forget, religious freedom was stressed 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 Syariah 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) – is almost approaching the criminal jurisdiction of the Sessions Court, all punishments permitted by law except the death penalty.When a severe crime like robbery can only be punished by the Sessions Court with a maximum term of 14 years and fine or whipping, what religious offences committed by Muslims should be slapped with 30 years of imprisonment, RM100,000 fine and 100 strokes of the whip?
Where is the principle of proportionality that’s so central to criminal justice?
Third, it is a blatant lie to claim that the Hadi’s Bill has nothing to do with the introduction of hudud punishments. If passed in its current form, it will immediately enable three hudud punishments in the Syariah criminal laws in Kelantan and Terengganu – 100 strokes 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 Syariah 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”. Noble efforts to advance Syariah justice should focus on the attainment of the higher purposes of Syariah (Maqasid Syariah) and not on an obsession to maximise punishments, often in complete disregard of temporal contexts. Syariah 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 Syariah Courts’ power as a project of communal pride, efforts should be put in introducing relevant and universalist ideas from Maqasid Syariah into our legal thoughts to make our laws more just and compassionate.
Fifth, the propaganda that Hadi’s Bill 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 Syariah Courts. We have many instances where the orang asli and natives are 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. Conversions to Islam are easy. Apostasy out of Islam is almost impossible. In such a state of affairs, it is difficult to argue that Syariah laws will not affect non-Muslims.
Sixth, the debates on the implementation of Syariah 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 one legitimate view. If opposition to Hadi’s Bill cannot be even tolerated today, what room for dissent will be left tomorrow after its passage?
We call upon all Malaysians to defend Malaysia as the secular federation which our forefathers intended and founded in 1963. We categorically reject the “divide and rule” tactic employed by certain quarters. The propaganda that Hadi’s Bill will affect only West Malaysians because Sabah and Sarawak will not implement hudud punishments is misleading and deceitful. It ignores the fact that hundreds of thousands of east Malaysian Muslims study, work, live in or travel to peninsular Malaysia. Once the Bill is passed, they will not be exempt 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 states in the peninsula. The only parties exempted from Syariah laws are the Yang di-Pertuan Agong and the Malay Rulers by way of the Special Court under Article 182, not 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 heavier than robbery. To insidiously alter the contract of marriage after 54 years unilaterally with an ill-thought 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 Bill 355.
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, UPKO secretary-general, former assistant Finance Minister, Sabah
Datuk James Ligunjang, former state assemblyperson, Sabah
Datuk Jema Khan, former State Youth Chief of Umno, businessperson, Sabah
Datuk Stan Yee, former president of Kota Kinabalu Municipal Council, Sabah
Datin Fazar Arif, Sabah
YB Baru Bian, state assemblyperson for Bakelalan, state PKR chief, Sarawak
Haji Amde Sidik, academic, former president of Persatuan Kedayan, Sabah
Haji Ramlee Dua, former state assemblyperson, former district officer, Sabah
Adrian Yong @ Adenan Johari Abdullah Yong, former company CEO, Sabah
Asgari Stephens, G25 member, businessperson, 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, businessperson, Sabah
Peter John Jaban, Sarawak 4 Sarawak activist, Sarawak
Valentine Willie, former Sabah Law Association president
Zahir Ahmad, former company CEO, Sabah