Why the recent tabling of the controversial Private Member’s Bill affects all Malaysians — Meera Badmanaban

Why the recent tabling of the controversial Private Member’s Bill affects all Malaysians — Meera Badmanaban

June 1 — The recent tabling of PAS’s controversial Private Member’s Bill last Thursday came as a shock to many. To go back briefly in time, PAS President Datuk Seri Abdul Hadi Awang attempted to table his Syariah Courts (Criminal Jurisdiction) Amendment Bill in the Dewan Rakyat twice last year. Thankfully, he failed. This year the attempt resurfaced; and it was a surprise to many that BN supported it. The PM responded by saying that “it was a big misunderstanding” and that the Bill was “about enhancing punishment in the Syariah Court”. The implication from this statement is that the Bill was not about Hudud, and that it did not affect non-Muslims in this country.

With respect, I fundamentally disagree with the above view that the Bill does not affect non-Muslims. It does. The following are some of the reasons why :

1. The criminal justice system is not a private matter; it is a public matter which affects all Malaysians.

The criminal justice system is a form of public law which affects all of us. That is the reason why we have a Penal Code and Federal Constitution which is applicable to all Malaysians; regardless of race and religion. That is also why the PAS led governments of Kelantan and Terengganu, which passed Hudud laws in 1993 and 2002 could not enforce them due to limitations placed by Parliament on the Syariah court as to what penalties it may impose for Syariah criminal offences.

2. Conflict between Syariah Law and Federal Law affects all Malaysians

The Syariah Courts’ Criminal Jurisdiction is subject to limits imposed by Federal Law of a maximum sentence of three years’ imprisonment; whipping of up to 6 strokes; and a maximum fine of RM 5,000. This is what is referred to loosely as the “365 Safeguard”. However, if this amendment had been allowed, it could be argued to have removed the 365 safeguard. It could have empowered the Syariah judges to significantly increase criminal punishment; for instance by a sentence of whipping of up to 100 strokes for accusations of engaging in illicit sex and up to 80 strokes for consumption of alcohol.

3. Significant enhancement of criminal punishment must be subject to adequate discussion and debate in Parliament.

This is a significant enhancement of criminal punishment and ought not to be taken lightly. It must, at the very least, be subject to adequate discussion and debate in Cabinet and Parliament. That is the core and basis of a parliamentary democracy.

4. Principle of Equality under Article 8 of the Federal Constitution; Fairness; Consistency; Uniformity of Laws and the Rule of Law Principle

Surely this Bill is a concern of all Malaysians because it affects fundamental principles involving equality; fairness; consistency and uniformity of laws. It also impacts the rule of law as it affects the certainty of interpretation of the law. Having two sets of laws for the same offence fundamentally violates the Principle of Equality under Article 8 of our Federal Constitution and the concept of the rule of law.

For instance, if the Bill is passed, a non Muslim and a Muslim could jointly commit a theft, but be treated differently. The Non Muslim may face jail and the Muslim may face the amputation of his hand. Of course I say “may” because we know that amputation of a hand would not be taken lightly. It probably would never happen, because we like to think of ourselves as moderate Malaysians. But that is irrelevant. The fact is that it could happen. And that is frightening.

5. The enactment of Hudud penalties in the guise of enactment of Syariah Personal Law for Muslims: A wolf in sheep’s clothing

If the amendment had been allowed, what could happen is that a State can attempt to impose Hudud like penalties and then claim that this is Islamic law; which is solely within the jurisdiction of the Syariah Courts. In other words, a wolf in sheep’s clothing.

And therein lies the start of the journey most Malaysians have no wish to embark upon. The journey to become an Islamic State. We all know that Malaysia is NOT an Islamic State at present. We are a Secular Nation. And as we all know, our Federal Constitution is the Highest Law of the land. Our Guide and Guardian. Thus, in the event of conflict between any law and that provided in the Federal Constitution; the latter prevails. And so it should.

It is the view of this writer that had this amendment been allowed; it would have undoubtedly threatened the secular nation of this multiracial; multi religious and beloved nation of ours.

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