Aliran holds that the 1957 Federal Constitution is the supreme law of the Federation.
Article 3 proclaims that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”.
Article 11(1) further states that “Every person has the right to profess and practise his religion” and Article 11( 3) states that ‘Every religious group has the right to manage its own religious affairs; to establish and maintain institutions for religious or charitable purposes; and to acquire and own property and hold and administer it in accordance with law”.
And further, Article 11(4) states: “State law, and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.”
The Constitution does not unequivocally state that we are a secular nation. It does not state that we are a theocratic Islamic nation either. In spite of tensions and tribulations, this Constitution has stood us for almost 58 years.
But there are now attempts to amend various laws to push us in the direction of an Islamic nation.
The Kelantan state assembly passed the Kelantan Syariah Criminal Bill (II) to introduce hudud law in the state of Kelantan on 25 November 1993.
This Bill was passed unanimously by all 36 State Assembly members, including two from the Barisan Nasional (BN). That was about 22 years ago. But the law could not be implemented because it required an amendment to the Federal Constitution. Many also thought that the Syariah Enactment that was passed was unconstitutional.
This was because under Schedule Nine of the Constitution, “civil and criminal law and procedure, and the administration of justice” falls under the sole purview of the federal government while the state government has jurisdiction only over “Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law…”.
On 19 March 2015, the Kelantan state assembly unanimously approved the Syariah Criminal Code (II) (1993) 2015 Enactment. Thirty-one Pas, 12 Umno State Assembly members and one sole PKR Assembly member supported the Bill.
Since then, Pas president Abdul Hadi Awang has submitted two Private Member’s Bills to the federal Parliament to:
- seek approval for the state to legislate punishment for crimes under the Penal Code and
- amend the Syariah Courts (Criminal) Jurisdiction Act 1965, to allow Islamic courts in the state to mete out punishments such as the death penalty for apostasy and amputation of limbs for thefts.
The implementation of hudud law—we have been told by its supporters—will not apply to non-Muslims. That might be so, theoretically speaking. In face, however, there is no doubt that the implementation of hudud laws will impact upon the lives of non-Muslims, who comprise about 38 per cent of the population, on several grounds.
What happens if both Muslim and non-Muslims are involved in a crime, say zina? Where will such a case be heard—in the civil or the Sharia court? Will hudud law or civil law apply? Or will it be heard in two separate courts—which might result in two different court rulings and punishments? What kind of justice would this be? Wouldn’t this go against the principle of equality before the law as enshrined under Article 8 of our Constitution?
And suppose it is decided that a crime is to be heard in the Sharia court, and there are non-Muslim witnesses to the crime. Will non-Muslim witnesses be able to testify on behalf of a rape victim? What would be the weight of the evidence presented by a non-Muslim witness? A male witness? A female witness?
And since the laws will invariably impact on all, Muslims and non-Muslims, any state government or any party that intends to introduce hudud laws is morally bound to engage all Malaysians—Muslims and non-Muslims alike—in public discourse and dialogue to convince them of the merits of hudud laws in a multicultural, multireligious society like ours.
Regrettably, there has not been opportunity for any kind of debate. At best, there have been so-called experts trying to propagate their ideas top-down.
Worse, it is especially disturbing that individuals, Muslims and non-Muslims, who are raising questions about the implementation of hudud, have been warned and threatened with detention under the Sedition Act for speaking out.
On 22 March, human rights lawyer Eric Paulsen was arrested for the second time for speaking about hudud.
Three staff members of BFM Radio have been investigated under Sec 298 of the Penal Code and Sec 233 of the Communications and Multimedia Act over a radio programme which allegedly derogated (menghina) hudud.
And yes, the IGP in his tweets has threatened to arrest people who have raised questions about this issue too.
Whatever happened to all our rights to speech, to assemble and to associate as guaranteed under Article 10 of the Constitution?
In the event, hudud is only a small part of the Sharia; so why is Pas, indeed many in Umno too, putting such heavy emphasis into on implementing the hudud? The fact of the matter is that there are bigger and more ominous stakes involved.
First, there is the politicisation of the issue by Umno after it had performed so badly in GE13. Having rejected Abdullah Badawi’s reformist option (after GE12), the only remaining option was for Umno to dig deeper into exclusivist ethno-religious and repressive Old Politics, some would even say to resort to reactionary fascist politics.
Put another way, both Pakatan Rakyat and Pas itself had to be displaced for Umno to recover its electoral losses. And how else to break these two than by pushing for a more exclusivist political agenda based on Ketuanan Melayu on the one hand and a more Islamic state on the other!
Alas, the momentum also seems to be with the Pas conservatives. Instead of being weary of Umno’s political re-strategising, they have welcomed working with Umno to push for hudud laws, perhaps even to form a unity government. Suddenly, they seem to have jettisoned their dreams of working with their Pakatan Rakyat partners to create a more just, democratic and better Malaysia.
But there is a second and more disturbing concern – for an increasingly large number of Malaysian Muslims appear to be pushing for the transformation of Malaysia into an Islamic state.
In fact, many believe that it is their duty as Muslims to usher in hudud, as it is part of the Sharia and the Islamic state, and in so doing they are simply regents of God on earth.
The Joint Hudud technical committee comprising representatives from the federal and Kelantan governments to look into the implementation of hudud in Kelantan have reported that 90-plus per cent of a survey of Kelantanese (in 24 out of 45 state constituencies) support the implementation of hudud (Malaysiakini, 2 April 2015).
Admittedly, the last 20-30 years has witnessed Islamic resurgence globally and the rise of political Islam – what with the plight of the Palestinians; the Iranian revolution; the invasions and wars in Afghanistan, Kuwait and then Iraq; al-Qaeda; the Arab Spring; and now the dreaded IS and Boko Haram.
Frustrated with the socio-economic ills engendered by globalisation, many Muslims globally have looked towards Islam as offering the solution to today’s social and political ills.
God forbid, it is not for an NGO like Aliran to evaluate the suitability of Islamic laws as the solution to the problems of our 21st century, globally.
But, insofar as Malaysia is a multi-ethnic, multireligious community, and insofar as the implementation of these laws will impact upon non-Muslims, not just Muslims, Aliran is opposed to this turn towards hudud laws, this shift away from a more secular towards a more theocratic Islamic nation.
More than anything else, the intention of selective application, invariably results in creating two classes of citizens, each with separate sets of rights, and of different curbs on those rights. This is moving towards apartheid, plain and simple.
We appreciate that one reason why Pas is pushing for the Sharia in general is that it is concerned about widespread social ills and the increasing number of political and financial scandals after 50 years of Umno-BN rule. Consequently, the existing civil-legal system has been found extremely wanting.
All the more reason, therefore, to reform this civil-legal system by pushing ahead with New Politics, characterised by a two-party democratic system under which:
- there will be checks-and-balances among the executive, legislature and judiciary;
- there are free and fair elections;
- ordinary people, public interest societies and free media can participate and have their say;
- the socio-economic interests of the rakyat, not those of the political elites and their cronies, are put on centre-stage; and
- the rights of all peoples regardless of their ethnic and religious background, race or gender, are protected.
We believe that all these safeguards and aspirations are not only contained in the Federal Constitution but are also in keeping with the teachings of Islam and indeed of all religions.
Aliran Executive Committee
8 April 2015