Hudud would undermine the constitution and non-Muslim rights – Jagir Singh

The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism & Taoism (MCCBCHST) does not agree with the proposed introduction of hudud law in Malaysia.

This is because hudud law would undermine the basic structure of the constitution and will change our legal system. It would also undermine the Rukunnegara and non-Muslim rights. It would be unconstitutional.

It is noted that when Malaya gained Independence in 1957, it was never in the contemplation of any party to introduce hudud in this country.

The Lord Reid Commission’s report, the Alliance Memorandum submitted to the Reid Commission and the White Paper issued by British Government in June 1957, which all formed the basis of the Federal constitution, stated Malaya to be a secular country.

The Proclamation of Independence was read by Prime Minister Tunku Abdul Rahman on 31st August 1957, on behalf of the people of independent Malaya, and it included the steering words: “and to provide for the peaceful and orderly advancement of Persekutuan Tanah Melayu as a constitutional monarchy”.

Further in a debate in the Federal legislative council in 1958 the Prime Minister stated: “I would like to make it clear that this country is not an Islamic State as it is generally understood. We merely provide that Islam shall be the Official religion of the State.”

The MCCBCHST respects and unequivocally accepts and supports the position of Islam as the religion of the federation as provided in Article 3.

MCCBCHST's opposition to the introduction of hudud as law in the country is based on the constitution and the fact that it will significantly impact non-Muslims and their way of life that has been guaranteed to every citizen of the country by the constitution.

I. The Kelantan Shconstitution

federal list

ariah Criminal Enactment (hudud) 1993.

This Enactment is unconstitutional for the following reasons:

i. It will offend the basic structure doctrine.

Malaysia as a country founded on parliamentary democracy where the Federal constitution is supreme, as declared by Article 4 of the constitution.

On the other hand, hudud derives its ultimate authority from the Holy Quran, which is only possible under a theocracy and thus would change the basic structure of the constitution from a parliamentary democracy to an Islamic theocracy.

This change would offend the basic structure of the constitution and be unconstitutional.

In the Indian supreme court case of Kesavananda Bharati v. the state of Kerala, the court held that in any country where the constitution is supreme, there must be an implied restriction of the power of the parliament to change the basic structure of the constitution.

i. The 1957 Constitution shows a clear intention to allocate penal powers to the Federal government and to confer on the States residual powers over minor shariah offences only.

Criminal law and procedure is specifically included under the Federal List (see Schedule 9 List 1 Paragraph 4).

By schedule 9, List II Paragraph 1, the States have power to create and punish Islamic Offences, subject to a number of significant exceptions that is:-

(a.) Firstly, State legislative authority in respect of “creation and punishment of offences by persons professing the religion of Islam” is limited by the words "... except in regard to matters included in the Federal List”.

Among matters specifically included in the Federal List are “civil and criminal law and procedure”.

(b.) Second, the authority to legislate on Islamic crimes is further qualified by the words “or dealt with by Federal Law: in schedule 9 List I paragraph 4(h) and the Federal Penal Code.

The states' residual powers are over shariah offences such as khalwat, zina, skipping of Friday prayers and failure to observe the compulsory fasts during Ramadhan.

The state has no authority to make laws of matters included in the Federal List and hudud offences of theft, robbery, unlawful carnal intercourse, are offences under the Federal List, thus putting these offences beyond the power of a state.

ii. Introduction of hudud would offend Article 75 of the Federal Constitution which states, “If any state law is inconsistent with a Federal law, the Federal law shall prevail and the state law shall, to the extent of the inconsistency, be void”.

iii. Hudud law, if implemented, would create a dual criminal legal system to run side by side with the Federal penal code. This would be unconstitutional.

This would also undermine the following fundamental rights:

a. Article 8(1) Equality before the law.

We cannot have for the same offence, people being judged differently and sentence meted out differently.

b. Article 5 (Right to life or personal liberty)

The right to life would include the right not to be subject to torture, inhumane or degrading treatment or punishment.

iv. Article 74(i) provides that Parliament may make laws with respect to any of the matters enumerated in the Federal List or the concurrent list (that is to say, the First or the third List set out in the Ninth Schedule).

Whereas, Article 74(2) provides that “the legislature of a state may make laws with respect to any of the matters enumerated in the Second List (that is to say, the Second List set-out in the Ninth Schedule) or the concurrent List”.

v. The Shariah courts (criminal jurisdiction) Act 1965, as amended in 1984, provides for the jurisdiction of Shariah courts over Muslims only, who may be tried for offences punishable with imprisonment of up to three years or a fine of up to RM5,000.00 or with whipping not exceeding six strokes, or with any combination of these.

These cover minor offences like khalwat, skipping Friday prayers, failure to observe compulsory fast during Ramadhan, etc.

vi. Article 76A, which is a general provision, cannot be used to over-ride specific provisions of the Federal constitution as listed from (i) to (vi) above, without these specific provisions and the Federal penal code being amended first.

The Kelantan Bill will also offend the basic structure doctrine that would make the Kelantan Bill unconstitutional.

II. Hudud would undermine non-Muslim rights as the following shows:

i. Under an Islamic theocracy, God’s law is supreme. Therefore the Federal constitution and Rule of Law will suffer. This would undermine the fundamental rights guaranteed to citizens under the constitution.

ii. A non-Muslim cannot be a witness under Shariah Law. In most hudud offences, the victim must produce four male Muslim witnesses of good character to give evidence on his or her behalf.

iii. In our multi-cultural country people of different faiths live side by side. When a crime is committed involving Muslims and non-Muslims, which court would have jurisdiction?. Even now tussles are going on in conversion cases.

iv. In rape cases, the burden is on the rape victim (woman) to produce four adult male Muslims witnesses, which in most cases would be impossible.

Thus, the victim can be punished for zina while the perpetrators of crime go free.

v. In hudud practising countries, the non-Muslims do not have equal rights and religious freedom is curtailed. In Saudi Arabia no non-Muslim places of worship are allowed to be built.

Even now, when there is no hudud law, we hear cases of conversion of children, children being taken away from mother, snatching of babies, snatching of bodies, etc.

vi. Some hudud proponents say, it will not affect non-Muslims. This cannot be true.

First thing, it will undermine the basic structure of the constitution and the fundamental liberties would be over-ridden. These would affect everyone, including non-Muslims and their freedom of religion.

Kelantan Shariah criminal Enactment (Hudud) 1993 seems to recognise this, when it provides in Section 56(2) that a non-Muslim can elect to come under the Shariah Enactment.

This 'choice' given by the Enacment is unconstitutional as jurisdiction is given by law. It cannot be obtained by submission or acceptance.

Further, the wording of Section 57 of the Enactment, which provides for offences of abetment, conspiracy or plot, is wide enough to cover even non-Muslims.

Therefore, the MCCBCHST hopes and prays that the hudud bills will not be introduced in parliament. These bills will have the effect of dividing the country in the middle, which division should be avoided at all costs.

* Jagir Singh is president of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism & Taoism (MCCBCHST).