Tuesday, February 28, 2017

Are 3-5-6 and 355 too much, too late?

KJ John     Published     Updated
A private member’s motion on amendments to Act 355 is bidding to seek Parliament’s approval to discuss and debate some issues and concerns of one member of the Parliament. That member of Parliament happens to be the president of PAS, the Islamist party, Ustaz Abdul Hadi Awang. This motion has not yet been fully tabled and debated. Nevertheless, we all need to be vigilant about the specific intent and political gamesmanship here.

Two good friends and equally proud Malaysians, both lawyers, Haris Ibrahim and Mohd Ariff Md Yusof, have written and spoken their complete theses about their issues and concerns. Please review them here and here.

My greater concern is that our democracy and monarchies are both equally defined by the same Federal Constitution of Malaysia.

Therefore any careless attitude and thinking about our Federal Constitution as currently predefined by non-Malaysians will affect all Malaysians equally. The constitution does not have two classes of citizenship.

Redefining those pre-agreed issues, and doing it merely by the back door of a private member’s bill, is simply a serious violation of the Malaysia Agreement of 1963.

Matters of public and/or national interest (defined as the needs and concerns of the original three framing and forming entities of the Malaysia Agreement) need full consensus and very good discourse of all related institutions, even the need for securing two-thirds agreement of Parliament.

The unconstitutional spirit of Act 355

The Reid and Cobbold Commissions were engaged and involved in drafting and framing the Federal Constitutions of 1957 and 1963. Even the lone Muslim Commissioner from Pakistan understood all nuances and implications before his views were made into specifications.

That agreement became words and were framed and phrased within our Federal Constitution as our ‘Document of Destiny’ as published by Star Publications. Therefore, if anyone really has doubts; they should read and understand all these issues.

Allow me, through this column, to repeat Mohd Ariff’s eight propositions and then argue why I think we are violating even the Spirit of our Original Constitution (ie before some questionable amendments were equally made by the back door in 1988).

Therefore, the expansion of the 3-5-6 punishments being done without a due process even amongst Muslims (see Perlis mufti Dr Asri Zainul Abidin’s comments in The Sunday Star last Sunday) without good consultations with relevant all parties for any such new policy.

Mohd Ariff requested and highlighting that all text has to always be read within its explicitly stated context, and therefore urged “harmonising the different aspects of the Law.” I summarise them as follows:

1. The Federal Constitution of Malaysia was always designed to be a secular one;

2. Article 3 (1) assigns a special status to Islam but expresses freedom of faith and practice of other religions;

3. Article 3 (4) gives supreme authority to the Federal Constitution against all violations to itself in spirit and law;

4. The formal division between secular and Islamic laws are explicitly listed in Schedule 9, List I (4a) and List II (1) and should be understood as our context for its original intent and interpretation;

5. The constitutionality of any interpretation of both Schedule 9 Lists I and II can and have been tested in Civil Courts and these have now been made explicit by case law which has never been overturned. The sole exception is the 1988 amendment of Article 121 (1a), which has be default become a de facto interpretation;

6. Syariah Courts established under State Laws are therefore Lower Courts of Limited Jurisdiction under the context of Schedule 9 Lists I and II. The same is true also of the Industrial Courts and a few others created recently;

7. Syariah Courts have jurisdiction only over Muslims and with respect to Item 1 List II; and finally,

8. Syariah Courts have no authority over matters not allowed by the Federal Laws.

Premised upon the above, I will therefore conclude that the tabling of Act 355 in excess of the 3-5-6 limits cannot simply be extended by without explicit Federal Laws concurrence; which are intended and always structured for compliance by all Malaysian citizens and visitors to Malaysia.

These Act 355 amendments therefore are too much and too late in the day. The two-thirds partners of entities that make up Malaysia; ie Sabah and Sarawak and the Malay States must all therefore agree “through a legal and legitimate process of consultation”, if these amendments are to be tabled debated and finally passed. If one is not really sure about the full rationale, I think we can simply ask our Singapore neighbours; if they can agree based on their interpretation of the original Malaysia Agreement.

One case of poor enforcement

The Malay Mail Online consequentially carried a story of one Malay Muslim couple who was “raided by the Federal Territory Islamic Department (Jawi)” in a budget hotel over “close proximity”. The couple were after all married and I do not know how or why Jawi can charge into a hotel room, which is private space paid for with personal funds, and which cannot be violated by persons without locus standi.

Premised upon the above storyline, I would like the Yang di-Pertuan Agong, as presumed Head of Religion for the Federal Territories, to please answer my genuine concerns as a citizen:
  • Which constitutional provision gives Jawi authority to raid a hotel room?
     
  • What was the offence, and would a Civil Court have given permission for such a raid?
     
  • Can such a raid ever be done without the presence of the police, which is our Civil Law enforcement authority for all criminal wrong-doings?
     
  • If I were therefore check into a room with a Muslim name, and another lady (who may be my daughter or sister), does it really mean that Jawi has authority to undertake a raid?
It is time for all Moderate Middle Malaysians (or 3M) to say ‘No’ to the Act 355 tabled by MP Abdul Hadi, even as he has apparently not studied the constitution to understand the founding history and principles.

My hope and prayer therefore is that all MPs who reply in support of 3M to vote against the tabling of this private member’s bill. Please do not let Hadi pass this motion in Parliament (no pun intended) and let us all simply tell the federal government that we cannot allow the reframing of this fully-resolved issue during the Malaysia Agreement 1963; especially in the specific case of Sabah and Sarawak.

I rest my case.

KJ JOHN, PhD, was in public service for 32 years having served as a researcher, trainer, and policy adviser to the International Trade and Industry Ministry and the National IT Council (NITC) of the government of Malaysia. The views expressed here are his personal views and not those of any institution he is involved with. Write to him at kjjohn@ohmsi.net with any feedback or views.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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