Monday, May 8, 2017

Sabahans, Sarawakians say firm 'no' to Hadi’s bill

   Borneo community leaders     Published    

COMMENT | On April 6, Parliament hastily cleared all government business to allow for the tabling of the controversial “Bill 355” which aims to expand the syariah courts’ criminal jurisdiction from three years of imprisonment, RM5,000 in fine and six strokes of the whip (the 3-5-6 limit) to 30 years, RM100,000 and 100 strokes (the 30-100-100 limit). If the bill is adopted, Malaysia’s nature as a secular federation will be fundamentally altered and the moral foundation of its existence eroded.

Ranging from former and current politicians across the political divide, to former top civil servants, professionals to businesspersons, 20 Sabahans and Sarawakians have decided to stand up and make the case as to why, for Malaysia’s sake, Bill 355 should be rejected.

Reminding Malaysians of their federation’s foundation in 1963, their statement is in four languages: Malay, English, Kadazandusun and Iban.

Attempts were also made to place advertisements in print media in East Malaysia but, unfortunately, this did not materialise.

The statement is also endorsed by Hamid Bugo, former Sarawak state secretary and Yusoff Haniff, former mayor of Kuching North. Their signatures are not on the document for technical reasons.

G25, the national grouping of prominent Malay-Muslims - former civil servants, academics, professionals and businesspersons - also endorses this statement by the 20 concerned East Malaysians.

The statement is reproduced in full below:

For Malaysia’s sake, NO to Bill 355!

It is the utmost contemptuous assault on our parliamentary democracy when parliamentarians are kept up until 5am on April 6, 2017 to clear government bills just to give member of parliament for Marang, Abdul Hadi Awang, the opportunity to table his private member’s bill to amend the Shariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), "RUU355" at noon on the same day, which was the final day of the Parliamentary sitting.

While the speaker halted the debate after speeches by Hadi and his colleague from Kota Baru, the bill is far from dead. Hadi will continue to pursue the bill, the proponents will continue slamming the opponents either for “betraying Islam” (if they are Muslims) or “anti-Islam” (if they are 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’s why.

Proponents of RUU355 and the larger agenda of shariah 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 shariah laws were the legal order for the Malacca sultanate and the succeeding Malay kingdoms.

They contend that expanding shariah laws is cleansing Malaysia from colonial legacies and restoring Muslims’ sovereignty, whereas preserving the common law system is a sign of prolonged mental colonisation. Hadi, in his famous "Amanat Hadi" in 1981, had denounced Barisan Nasional for preserving “a colonial constitution, infidel laws and pre-Islamic rules”.

The proponents further contend that the criminal jurisdiction of the Shariah Court, which is currently limited to a maximum of three years’ imprisonment, RM5,000 fine and six strokes of the whip (the 3-5-6 cap), and 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 Shariah Court in an inferior position; and it is, therefore the duty of every Muslim to elevate the position of the shariah 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 shariah law.

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 today.

Lest we forget, religious freedom was stressed on 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.

‘Laws for all’

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 shariah 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) – are almost approaching the criminal jurisdiction of the Sessions Court all punishments permitted by law except the death penalty.

When a severe crime such as robbery can only be punished by the Sessions Court with a maximum jail term of 14 years and fine or whipping, what religious offences committed by Muslims should be slapped with 30 years of imprisonment, a RM100,000 fine and 100 strokes of the whip?

Where is the principle of proportionality so central to criminal justice?

‘Hudud will apply’

Third, it is a blatant lie to claim that Bill 355 B has nothing to do with the introduction of hudud punishments. If passed in its current form, the bill will immediately enable three hudud punishments in the shariah criminal laws of Kelantan and Terengganu - 100 strokes of the whip 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 shariah 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” (Rahmatan lil alamin). Noble efforts to advance shariah justice should focus on the attainment of the higher purposes of shariah (Maqasid Syariah) and not on an obsession to maximise punishments, often in complete disregard of temporal contexts.

Shariah 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 the shariah courts’ power as a project of communal pride, efforts should be put into introducing relevant and universalist ideas from Maqasid Syariah into our legal thoughts to make our laws more just and compassionate.

Fifth, the propaganda that Bill 355 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 shariah courts. We have many instances of the Orang Asli and natives being 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. Conversion to Islam is easy. Apostasy out of Islam is almost impossible. In such a state of affairs it is difficult to argue that shariah laws will not affect non-Muslims.

Sixth, the debates on the implementation of shariah 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 a legitimate view. If opposition to RUU355 cannot be even tolerated today, what room for dissent will there be tomorrow after its passage?

‘Non-Muslims affected’

We call upon all Malaysians to defend Malaysia as the secular federation our forefathers founded and intended it to be in 1963. We categorically reject the “divide and rule” tactic employed by certain quarters. The propaganda that RUU355 will affect only the peninsula because Sabah and Sarawak will not implement hudud punishments is misleading and deceitful. It ignores the fact that hundreds of thousands of Muslims from Sabah and Sarawak study, work, live in or travel to Peninsular Malaysia.

Once the bill is passed, they will not be exempted 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 peninsular states. The only parties exempted from shariah law are the Yang di-Pertuan Agong and the Malay rulers by way of the Special Court under Article 182, not the 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 more heavily than they would be for robbery. To insidiously alter the contract of marriage after 54 years unilaterally with an ill thought-out 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 RUU355.

  • Simon Sipaun, former state secretary, former Suhakam vice-chairperson, Sabah
  • Johan Arriffin A Samad, former deputy director of Yayasan Sabah, G25 member, Sabah
  • Amin Satem, G25 member, Sarawak
  • Donald Peter Mojuntin, secretary-general of Upko, former assistant minister of finance, Sabah
  • James Ligunjang, former state assemblyperson, Sabah
  • Jema Khan, former state Umno Youth chief, businessman, Sabah
  • Stan Yee, former president of Kota Kinabalu Municipal Council, Sabah
  • Fazar Arif, Sabah
  • Baru Bian, state assemblyperson for Bakelalan, state chief of PKR, Sarawak
  • Amde Sidik, Academic, former president of Persatuan Kedayan, Sabah
  • Ramlee Dua, former state assemblyperson, former district officer, Sabah
  • Adrian Yong @ Adenan Johari Abdullah Yong, former company CEO, Sabah
  • Asgari Stephens, G25 member, businessman, Sabah
  • Jannie Lasimbang, state DAP Women chief, former Suhakam commissioner, Sabah
  • Karen Shepherd, Sarawak 4 Sarawak activist, writer, Sarawak
  • Kartina Salleh Sulong, lawyer, Sabah
  • Marinah Harris Salleh, businessman, Sabah
  • Peter John Jaban, Sarawak 4 Sarawak activist, Sarawak
  • Valentine Willie, former president of Sabah Law Association, Sabah
  • Zahir Ahmad, former company CEO, Sabah

The statement was conveyed by former state secretary SIMON SIPAUN, and former deputy director of Yayasan Sabah JOHAN ARRIFFIN A SAMAD.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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