Sarawak must vote against Act 355

SARAWAK’S unique cultural heritage of multi-religious, multinational harmony and unityin-diversity must be protected at all costs, otherwise the floodgates will be open to Hudud law, if the amendment to Act 355 or Hadi’s Bill is promulgated by Parliament. All Sarawak MPs have to attend and vote against it as part of their historic duty to safeguard Sarawak and our nation’s interests.

The Kelantan Syariah Criminal CODE II (1993), better known as Hudud, was passed by the Kelantan State Assembly some 20 years ago. The same criminal code, now known as Amendment 2015, was passed unanimously by the Kelantan State Assembly. Under the Kelantan Hudud Enactment, the Kelantan Syariah Criminal Code 11 (1993) 2015, cannot be implemented due to legal constraints. It awaits the amendment to Act 355 to activate the implementation of Hudud law in Kelantan, then in other states and, eventually, the whole nation under their declaration of intent.

It was extremely heartening for DPM Datuk Seri Ahmad Zahid Hamidi to recognise publicly that the Unity Index in Sarawak has demonstrated the highest degree of unity between races, religions and cultures over hundreds of years, nurtured during the Brooke and British administrations, as well as after the Malaysia Agreement 1963 (MA63).

Sarawak was lucky “to have the leaders who upheld the true spirit [and spiritual values of mutual] tolerance and respect of Sarawak from past to present including YAB Datuk Amar Abang Johari Tun Openg.

“Despite all the differences in opinions, cultures, religions and various approaches between Sarawak and Peninsular Malaysia, Sarawak has its uniqueness and unity … under the three unity models – accepting the differences, respecting, and managing the differences”.

Precisely for that reason, the one thing that could destabilise, and eventually destroy, that unique unity-in-diversity and change the peaceful and harmonious ambience and climate in Borneo is to push through Hudud law, which will go against the wind that we cannot read.

Religious issues would be the most frightening and dangerous ‘bird flu’ that would disturb the hitherto healthy environment created by our intrepid missionaries and other religious leaders practising religious and multiracial harmony reflecting unity-in- diversity, where we are able to eat together at the same table with different cultural culinary dishes – a practice that the peninsula is not used to, especially in Kelantan, except perhaps, for PAS once in Sibu during election time.

If this criminal code were to be promulgated, it would be discriminatory, discrepant in sentencing, and a breach of Article 8 of the equality “before the law and entitled to the equal protection of the law”, as pointed out by our CM recently.

Unfortunately, Article 4(1) of the Supremacy of the Constitution has been watered down by Article 121(1A) passed in 1988 by Parliament with the provision that both the High Court of Malaya and High Courts in Sarawak and Sabah shall have, “no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”. This was not known nor expected in 1963, when the Borneo territories joined in the formation of Malaysia. If that were made known, the founders who helped Sarawak and Sabah to form Malaysia would have objected. In the restrictive State List II of the Ninth Schedule, neither Islamic Law nor Syariah Courts were included. In 1976, as the first step, Muslim Courts were renamed as Syariah Courts, and Muslim Law as Islamic Law; also Article 1(2)(b) of the Federal Constitution was amended unconstitutionally to Article 1(2) to relegate Sarawak from equal partner to a satellite state, primarily to hem in the territorial waters of Sarawak from Continental Shelf to three miles.

But Parliament is also supreme; no Parliament can bind the subsequent Parliament. So Sarawak and the majority in the nation expect it the duty of all Sarawak MPs to vote against the amendment to Act 355. Our MPs today are more educated, astute and articulate.

There are three major areas of punishments – the Hudud (fixed punishments), which include offences such as robbery, theft, adultery, false accusation of adultery, sodomy (even against wife), heresy and intoxication; the qisas (retaliatory) that relates to punishments for homicide and causing bodily injuries; and the ta’zir (discretionary) that refers to the usual lighter punishments imposed when those for Hudud or qisas cannot be meted out.

If Act 355 is passed, attempting to convert out of Islam would become a grave crime. Luckily the death penalty will not be allowed. Apostasy would never be allowed by the religious authorities. So Kamarinh’s case (2004) would be a serious crime. However, this would be in breach of the fundamental freedom of religion under Article 11 of the Federal Constitution. “Managing its own religious affairs” under Article 11 (3)(a) should not make apostasy a crime nor should it be prohibited.

On Oct 14 last year, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCC) tried to get Sarawakians to convince their MPs to vote against the proposed amendment to Act 355, now ‘sponsored’ by the federal government.

For the Hansard, it would not be a bad idea to pass this motion of objecting to the amendment of Act 355 in the next State Legislative Assembly sitting as a record for future reference and precedent.

MCC stated the following prominent personalities believed Act 355 would inevitably lead to Hudud law: Emery University law professor Abdullah A An-Naim feels Muslims are not obliged to support Hudud; 284 Malay nongovernmental organisations headed by Tan Sri Abdul Aziz Abdul Rahman stated that the Bill is unconstitutional; Perlis Mufti Mohd Asri Zainal Abidin advised Muslims not to call for the formation of an Islamic state or enforcement of Islamic laws, but for non-Muslims to be exempted; former IGP Tan Sri Rahim Noor warned of PAS’ tactics of slowly pushing for Hudud.

Ever since 1988, when Article 121(IA) was promulgated by Parliament, namely “any matter within the jurisdiction of the Syariah Courts”, other court shall have no jurisdiction, an array of conflicting jurisdictional interpretations and decisions have caused unspeakable “Jurisdictional imbroglio civil and religious courts, turf wars and Article 121(IA) of the Federal Constitution”. Respect of law and fundamental liberties guaranteed by the Federal Constitutions have been ignored.

Some accused political and administrative authorities of failure to uphold the rule of law, thereby unable to deal with compassion and fairness on heart-rending cases of conversion, fighting and snatching of the dead bodies from the coffin for Muslim burial, as with the case in Miri recently.

For example, in Rayappan Anthony’s case (2005) on conversion back to Roman Catholicism, luckily the Selangor religious authorities abandoned their claim. But, in Moorthy’s, the Hindu hero who climbed Mount Everest, case (2005) the Civil Court said it “had no jurisdiction to review, nullify or ignore the Order of the Syariah Court”. Many cases pertaining to religious rights, custody and freedom have torn families apart and fomented unhappiness hitherto in the ‘dual legal system’ in civil cases.

In one case, the father got custody of a boy from the High Court, and the mother from the Syariah Court. While sorting out the case on appeal, someone suggested the poor child be placed in an orphanage, although the parents were still alive.

Cases on apostasy, religious conversion, death certificate, dead poll to renounce Islam (Kamariah’s case 2004); conversion of minors without mother’s consent (Shamala’s case 2005); Muslim designation in identity card (Lina Joy’s case 2006); have created nightmares, along with divorce cases with two different religions – Muslim and non-Muslim.

If the amendment to Act 355 is passed by Parliament, unless not applicable to the Borneo states, there will be more cases where a guilty Muslim female adult can be convicted of khalwat or close proximity or even adultery offence with a non-Muslim, but there will be no jurisdiction over the nonMuslim. Still the Penal Code will have to compete with Hudud Law in the ‘turf war’.

The female Muslim will be subject to severe fine or punishment by caning meted out by the Syariah Court, but the man may get off scot free in the Civil Court. There will be public outrage over the dual legal system. Evidence in Civil Court procedures is more stringent in one way and less stringent in another way, namely to produce four Muslim witnesses of good character who have witnessed the sexual crime of rape in the Syariah Court.

In theory with this dual – legal system, Islamic law applies to Muslims in personal, religious and family matters. This is not easy in practice regardless whether Article 121(IA)’s wording was badly drafted.

Indeed, Section 121 (IA) was inserted specifically to prevent civil court to review the Syariah’s Court Orders.

So in theory, as Tan Sri Abu Talib Othman, the Federal AG, said, “It was never intended to deprive the non-Muslims of the rights to seek justice in a civil court”, the problem was “the lack of moral courage in interpreting Article 121(IA)”.

Judges were blamed for failing to safeguard the constitutional supremacy and guaranteed rights in declaring jurisdiction in many cases “where Islam is merely seen on the surface”. If it is already bad in civil cases, it will be worse in criminal cases when severe punishments will be meted out – 100 lashes instead of six lashes – possibly even higher than the imperial court punishment in China centuries ago.

In practice, although it states that the amendment to Act 355 does not apply to non-Muslims, it is not quite true when the non-Muslim party dies or when their children’s status is affected by divorced couples when they are converted with or without one parent’s knowledge. That is the usual case where problems would arise in civil cases.

1. As far as Borneo States were concerned, they did not appreciate and know in advance the implications in future of a dual legal system before MA 1963. It was outside the State List II of the Ninth schedule. Yes, only 23 years later in 1988, when Article 121 (IA) was passed in Parliament affecting rights of non-muslims in practice, despite the contrary assurances.

2. MCC argued that the “Law according to Article 160(2) of the Federal Constitution, includes written law, the common law in so far it is operation in the Federal or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.

The council said the Syariah law (of which Hudud offences are part) is not even included in the definition of “law” under the Federal Constitution.

The introduction of Hudud offences will affect the very fabric of the Federal Constitution as Malaysia is basically governed by secular laws”.

3. It is often a matter of different interpretations by different judges in different courts (Syariah and Civil), the present “turf war” will become more fierce in future with conflicting criminal jurisdictions between the liberal and conservative judges, or judges from Peninsular or the Borneo territories.

4. On the criminal aspect of the Syariah Court Act (Criminal Jurisdiction Act 1965),as mentioned above, the actual reason here is due to the fact that the State Kelantan Syariah Criminal Code 1993 in 2013 could not be enforced due to Act 355. The 6 lashes to 100 lashes would be serious and the fine to be increased to RM100,000 looks serious too. Jail term is proposed to be increased to maximum of 30 years. Hudud is like a Damocles’ Sword hanging over the Borneo Territories, if allowed to exist in any form. That is view of State BN parties in general.

5. Previous attempts to amend or repeal Article 121 (IA) were considered too “politically sensitive” a“hot potato” to be brought before Parliament. This Article 121(1A) and Article 4(5) of the Federal Constitution should be clarified and better worded.

6. The civil cases of the “Juridical Imbraglo of Civil and Religious Courtsand Turf wars” and Article 121 (IA) of the Federal Constitution have left so much undesirable, unhealable scars and pain for families especially after divorces between Muslims and nonMuslims, as explained above. 7. Sabah and Sarawak “Islam was been formally declared as the religion of the State by Article 5A of the Sabah State Constitution added by the Constitution (Amendment) Enactment, 1973 [while protecting the practice of other religions in peace and harmony in any part of the State]. Sarawak has not passed a similar law”. Tun Mohammed Suffian’s “An Introduction of the Constitution of Malaysia”.

In Sarawak, there is a genuine fear if the amendment to Act 355 were to be promulgated, inevitably it will pave the far reaching predictable implementation of Hudud laws and more unpredictable consequences of the Court decisions in the dual system with implementation of Hudud(Laws) first in Kelantan, then in various states, and later nationwide.