Fundamental Liberties

Shariah Law has no Consequences on Non-Muslims? HUMBUG

Will you Walk into my Parlour? Said the Spider to the Fly PAS is exploiting its new-found powers in the Federal government to table a new bill on control and restrictions on the development of non-Muslim religions. A major element of PAS new legal initiative is the RU355 which was temporarily shelved in 2017 after … Continue reading “Shariah Law has no Consequences on Non-Muslims? HUMBUG”

Will you Walk into my Parlour? Said the Spider to the Fly

PAS is exploiting its new-found powers in the Federal government to table a new bill on control and restrictions on the development of non-Muslim religions. A major element of PAS new legal initiative is the RU355 which was temporarily shelved in 2017 after it met strong opposition from critics who argued that the bill would make Hudud which is a state-enacted law under the the Federal Constitution become Federal criminal law. As Federal law, Hudud will be applied to all citizens regardless of their religious affiliation. To be sure, Muslim politicians and justices have assured non-Muslims that they have nothing to fear, only to say in their next breath that Hudud must be applicable to both Muslims and non-Muslims. Anyone who accepts their facile assurances should remember the classic children poem, “The Spider and the Fly” by Mary Howitt (1829).

Will you walk into my parlour?” said the Spider to the Fly,
‘Tis the prettiest little parlour that ever you did spy;
The way into my parlour is up a winding stair,
And I’ve a many curious things to shew when you are there.”
Oh no, no,” said the little Fly, “to ask me is in vain,
For who goes up your winding stair can ne’er come down again.”

“I’m sure you must be weary, dear, with soaring up so high;
Will you rest upon my little bed?” said the Spider to the Fly.
“There are pretty curtains drawn around; the sheets are fine and thin,
And if you like to rest awhile, I’ll snugly tuck you in!”
Oh no, no,” said the little Fly, “for I’ve often heard it said,
They never, never wake again, who sleep upon your bed!”

[only 2 out of 7 stanzas reproduced here]

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[The materials below were first posted on 10 Feb 2017]

UMNO will be lending a helping hand to PAS to push a Bill through Parliament which would amend the Shariah Courts (Criminal Jurisdiction) Act 1965, also known as Act 355. The amendments would extend power to the Islamic courts to enforce heavier punishment for Islamic offences. PAS President Abdul Hadi Awang and UMNO leaders assure non-Muslims that the proposed amendments will not affect non-Muslims. Re: Hadi to Make More Amendments to Shariah Bill] [FMT 23 Nov 2016] Continue reading “Shariah Law has no Consequences on Non-Muslims? HUMBUG”

MCCBCHST OPEN LETTER TO MPs TO VOTE AGAINST HADI’S HUDUD BILL

RELATED POST: Shariah Law has no Consequences on Non-Muslims? HUMBUG RELATED POST: MCCBCHST: WE REJECT THE PRIVATE MEMBERS BILL ON HUDUD ** Note to the reader. There will be some amendments to Hadi’s bill as it goes through the various readings in Parliament. Supporters of Hadi’s bill will then claim that the statement of MCCBCHST’s … Continue reading “MCCBCHST OPEN LETTER TO MPs TO VOTE AGAINST HADI’S HUDUD BILL”

** Note to the reader. There will be some amendments to Hadi’s bill as it goes through the various readings in Parliament. Supporters of Hadi’s bill will then claim that the statement of MCCBCHST’s is no longer relevant. We disagree!

In any case, the statement is shared as documentation about the baseline or ultimate goal of the Islamic Hudud agenda which will be “implemented in phases”. The statement also reminds us the hudud context even as the next stage will be on explaining why the bill with the new amendments is still unacceptable.

** Call your MPs to make sure they vote against Hadi’s Bill (UMNO Assisted).

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The Malaysian Counsultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taosim (MCCBCHST) is gravely concerned with Hadi’s Private Members Bill which will be coming up for debate soon in our Federal Parliament. As the Bill will have far –reaching consequences for the Nation, the MCCBCHST feels duty bound to issue this open letter to Members of Parliament to do their duty as required by their oath of office to protect our Federal Constitution.

Excerpts from the 8-page MCCBCHST Open Letter to MPs
I. Is HADI’s Private Member’s Bill a Bill empowering HUDUD offences?
The answer is a clear ‘YES”. Here it is why…

The AIM of HADI’s Private Member’s Bill is to seek Parliament’s approval to enhance the Jurisdiction of the SYARIAH COURTS…

The proposed new Section 2A is very wide and states that Syariah Courts can impose punishments which are allowed by Syariah Law in relation to punishments which are listed under the above Section, other than the death penalty. Continue reading “MCCBCHST OPEN LETTER TO MPs TO VOTE AGAINST HADI’S HUDUD BILL”

The Federal Constitution, Islamisation and the Malaysian Legal Order

Related Post, Highly Recommended: Interfaith Council Urges MPs to Vote Against Hadi’s Upgrade Shariah Courts Bill by Guest Writer Mr. Lim Heng Seng. [The policy introduced by the Mahathir administration in the early 1980s, innocuously promoting Islamic universal values, became a platform for certain quarters to embark on a drive to change the fundamental … Continue reading “The Federal Constitution, Islamisation and the Malaysian Legal Order”

by Guest Writer Mr. Lim Heng Seng.

[The policy introduced by the Mahathir administration in the early 1980s, innocuously promoting Islamic universal values, became a platform for certain quarters to embark on a drive to change the fundamental character of the Malaysia polity and its legal order.

Will Malaysia end up as an Islamic or quasi-Islamic state by the gradual and subtle re-writing of her foundational document, the Federal Constitution? Or will she retain her character as an essentially secular nation?

These developments in Islamisation threaten to subvert the very foundation on which we, the citizens, and the territorial components of Peninsular Malaysia, Sabah and Sarawak have held together as one nation.]

Continue reading “The Federal Constitution, Islamisation and the Malaysian Legal Order”

Why Recent Court Judgments Which Restrict Religious Freedom May be Questioned.

This article demonstrates how the current view that only the Syariah Court has the jurisdiction to rule on the status on those who had renounced Islam began with a misreading of a minority view in an earlier Supreme Court’s judgment in Dalip Kaur and treating it as setting a binding precedent. The non-binding minority view … Continue reading “Why Recent Court Judgments Which Restrict Religious Freedom May be Questioned.”

This article demonstrates how the current view that only the Syariah Court has the jurisdiction to rule on the status on those who had renounced Islam began with a misreading of a minority view in an earlier Supreme Court’s judgment in Dalip Kaur and treating it as setting a binding precedent. The non-binding minority view subsequently turned into ratio decidendi when the Federal Court in Soon Singh case approved the High Court’s judgment which ‘followed’ the minority view instead of the ratio of the majority judgment in Dalip Kaur.

Confusion between ratio decidendi (“the reason for the decision” which has legal binding effect) and orbiter dictum (“an incidental, by the way statement” which has only persuasive value) also arose in cases relating to religious freedom in Malaysia.

I refer readers to the careful analysis by Kuek Chee Ying & Tay Eng Siang in “When Orbiter Dictum and Minority View Become Ratio Decidendi” published in the Malayan Law Journal (2015) volume 3, pages lxxxii-xcvi Continue reading “Why Recent Court Judgments Which Restrict Religious Freedom May be Questioned.”

Malaysian Bar: Supremacy of Federal Constitution and Syariah Court Enactments (2016) June 8, 2016

Malaysian Bar Press Release | Preserve, Respect and Uphold the Supremacy of the Federal Constitution 8 June 2016 The Malaysian Bar is extremely concerned over recent attempts by certain parties to ignore or reject entrenched principles in our supreme law, namely the Federal Constitution.[1] It was reported that Minister in the Prime Minister’s Department, Dato’ … Continue reading “Malaysian Bar: Supremacy of Federal Constitution and Syariah Court Enactments (2016) June 8, 2016”

Malaysian Bar Press Release | Preserve, Respect and Uphold the Supremacy of the Federal Constitution
8 June 2016

The Malaysian Bar is extremely concerned over recent attempts by certain parties to ignore or reject entrenched principles in our supreme law, namely the Federal Constitution.[1]

It was reported that Minister in the Prime Minister’s Department, Dato’ Seri Jamil Khir Baharom (“Minister”) said that “the laws to ban unilateral conversion contravenes [sic] Article 12(4) of the Federal Constitution which states the religion of a minor under the age of 18 can be determined by their respective mother or father”.[2]

The Minister’s remarks are erroneous. Article 12(4) of the Federal Constitution provides: “For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian” (emphasis added).[3] Article 12(4) must be read with the interpretation provisions in the Federal Constitution — Article 160 and the Eleventh Schedule — that provide that all words in the singular also include the plural. Hence, the religion of children under the age of 18 is to be decided by both parents, where both parents are alive. Continue reading “Malaysian Bar: Supremacy of Federal Constitution and Syariah Court Enactments (2016) June 8, 2016”

Human Dignity: New Paradigm for Religious Liberty **

Precis: Human rights circumscribe the limits of legitimate authority (including majority rule) and are inalienable for any individual, that is, they cannot be taken from any individual. Since human rights are inalienable and are inherent possession of every individual, they are not given by authorities. Human rights are the pre-political possession of the individual rather … Continue reading “Human Dignity: New Paradigm for Religious Liberty **”

Precis:

Human rights circumscribe the limits of legitimate authority (including majority rule) and are inalienable for any individual, that is, they cannot be taken from any individual. Since human rights are inalienable and are inherent possession of every individual, they are not given by authorities. Human rights are the pre-political possession of the individual rather than a gift or concession from governing authorities. Otherwise, the state may claim the right to take rights back from citizens. Such a proposition is consistent with the understanding that human rights is not a matter of state policy, it is a matter of universal moral principle…

Man as a being created in God’s image is as such inherently entitled to equal regard regardless of race, gender or social position. It demands impartiality in how persons are treated. Acknowledgment of human equality entails protection from harm and along with it the range of inalienable human rights including the right to respect, the right to life, and the right to certain freedoms exemplified by fundamental liberties or bill of rights enshrined in modern constitutionalism. In this regard, rights cannot be lost or taken away.

In summary, recognizing human beings as created in the image of God entails (1) equal dignity and interdependence of man and woman; (2) personal rights such as equality, freedom and dignity of the individual; (3) social rights arising from interdependence of community members in matters of justice; and (4) stewardship of creation.

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I. Presuppositions and Social Realities
This paper is premised on three theses about the logical outcome of conventional Malaysian politics.

Thesis 1 – So long as Malaysian politics is negotiated on racial/religious terms, political discourse and public policies will increasingly become more Islamic. Only an Islam that undertakes a process of Ijtihad which reforms the Shariah Law can prevent the eventual emergence of an Islamic state. Itjihad is unacceptable to Sunni Islam practiced in Malaysia.

Thesis2 – Non-Muslims must reject the myth of monolithic identity of race and religion based politics (c.f. rebuttal by Amatya Sen, (Identity and Violence) and shift the terms of politics to one based on the human rights and equal citizenship in a modern pluralistic democracy.

Thesis 3 – Democratic rights are not just ideals but the outcome of political power, law and public policies enforced through social institutions. Furthermore, democracy practices can flourish only if it is supported by a strong civil society that nurtures democratic culture and democratic discipline.

This situation calls for a new paradigm of public discourse based on human rights and equal citizenship that can provide a robust social and moral critique of Islamic hegemony in a pluralistic society. Continue reading “Human Dignity: New Paradigm for Religious Liberty **”

Call for Rational Debate of Hudud and Implementation of Syariah Compliant Govenment Policies on Non-Muslims

It is encouraging to find Malaysians across the race-and-religion divide coming together to call for rational debate on hudud and the related Kelantan Syariah Criminal Code (1993), and affirming that: – As all Malaysians, Muslims or non-Muslims, Kelantanese or non-Kelantanese, are rightful stakeholders in the enforcement of KSCC, no one should be penalised, threatened or … Continue reading “Call for Rational Debate of Hudud and Implementation of Syariah Compliant Govenment Policies on Non-Muslims”

– As all Malaysians, Muslims or non-Muslims, Kelantanese or non-Kelantanese, are rightful stakeholders in the enforcement of KSCC, no one should be penalised, threatened or ridiculed for having or expressing any opinion on the matter.

– The success of Islamic banking in winning over the hearts and minds of non-Muslims through rigour and proven benefits, rather than a deceiving assurance of non-Muslim exclusion or a sloppy “trial-and-error” attitude, should be an inspiring example.

– The implementation of KSCC must not be decided on a winner-takes-all manner, such as a simple majority in the Dewan Rakyat, for this will risk tearing the country apart.

– The inclusive spirit of the Federal Constitution and the 1963 Malaysia Agreement, which lay down the secular basis of the Federation of Malaysia, must be upheld.

First, the provisions of the Kelantan Syariah Criminal Code is so evidently ultra vires the Federal Constitution that there is a prima facie case to reject it out of hand. It is agreed that the call for rational dialogue should not be restricted to debating whether one should support or oppose hudud. It is a call to all Malaysians to respect the provision related to the status of Islam and other religions in the Federal Constitution which is premised on a secular framework. Put concretely, the starting point for dialogue should be the original intent of the Federal Constitution as a secular-state where there is no establishment of religion, or provision for a dominating position for Islam. In this regard hudud or any Islamic law should not be part of our legal system, except in matters of personal law specifically enumerated in the Constitution. See related post: Malaysia Social Contract (Part 1): Religion and Equal Citizenship and Historic Documents on the drafting of the Constitution.

Second, the rational debate should publicly call into question not only the overt hudud agenda of the Kelantan government, but also the arguably, clandestine introduction of syariah compliant provisions in various State enactments in UMNO dominated State Legislative Assemblies (Dewan Undangan Negeri), and imposition of syariah compliant policies in the government departments affecting non-Muslims. Hudud naturally elicits strong and vocal opposition from all reasonable Malaysians as its implementation is an obvious and undeniable act of injustice against non-Muslims. In contrast, the introduction of syariah compliant laws and departmental policies are subtly and incrementally implemented so that non-Muslims remain unaware of the gradual erosion of their fundamental liberties.

In either case, the inclusive spirit and universal justice enshrined in the Federal Constitution would be shattered by the fatal blow of hudud, or gradually extinguished by the covertly introduced syariah compliant laws of the State Legislative Assemblies and government department policies. Continue reading “Call for Rational Debate of Hudud and Implementation of Syariah Compliant Govenment Policies on Non-Muslims”