Hudud and the Islamisation of Malaysia – Boniface Willy Anak Tumek

On March 19, 2015, the PAS-majority state government of Kelantan unanimously voted to pass the Syariah Criminal Code (11) 1993 (Amendment 2015) Bill. The next milestone in Kelantan’s journey to implement hudud in the state, and eventually in Malaysia, will be the tabling of the private member’s bill in parliament.

Irrespective of the fate of the private member’s bill, an irreversible stage has been reached in the on-going process to Islamise Malaysian laws and this is accompanied by further erosion of the rights of non-Muslim Malaysians.

Proponents and backers of hudud, notwithstanding their motives, have sought to allay the fears of the non-muslims by saying non-Muslims will not be bound by hudud and hudud will have no effect on them.

Those who are not too intellectually inclined have resorted to saying that only bad people, the criminals, need fear hudud.

Non-muslim politicians and ordinary Malaysians who look at Kelantan’s ambitions for hudud from a purely political angle may consider it as a non-issue, pointing to the fact that non-muslim MPs from both sides of the divide plus the dissenting Muslim MPs will ensure that PAS does not get the two-third majority they need to secure the necessary amendment to the federal constitution.

But for the many who find PAS’s proposal to implement hudud troubling, are their fears justified?

Assuming that there are enough Muslim MPs who believe that hudud should not be implemented now, because conditions precedent are not fulfilled and these join the non-muslim MPs to vote against it and deny PAS the simple majority they need, NGOs like ISMA and the others of the same mould will ensure that hudud gains traction and will not fade away. Every five years, Islam and hudud will be part of the rallying call of Umno and PAS, further ensuring that the traction does not diminish over time.

It is not lost on the non-muslims in Malaysia that hudud is contained in the Koran and is therefore to the Muslims, divinely sanctioned. Following on this, is the realisation that many dissenting Muslim MPs will come to a stage where they will have to wrestle with their conscience over hudud. So, the chances of getting a two-third majority in parliament favouring hudud not so improbable at some point in the future.

Malaysia’s history has shown that non-muslims indeed have very compelling reasons to fear PAS’s proposal for hudud. From as early as 1966, just three years after Malaysia came into being, there have been relentless efforts by the Umno-led BN government to Islamise the country’s laws, resulting in the non-muslims suffering substantial loss of right in the area of the practise of their faith.

In 1988, the minister of education directed that the employment of all principals of Christian mission schools who are religious (i.e priests, religious brothers and sisters) be terminated immediately upon them reaching the age of 55. In peninsular Malaysia, the principals who took over were mostly Muslim. Christian mission schools in Sarawak and Sabah, due largely to the significant Christian population in the states were for the most part, were spared. Foreign priests were denied entry into Malaysia and those already in the country had their stay cut short and made to leave. The growing Christian population especially in Sabah and Sarawak were faced with a severe shortage of priests.

In 1981, the Indonesian translation of the Bible – the ‘AlKitab’ was banned under the ISA. The ban was later lifted on the conditions that these Bibles were stamped with warning that the Bibles are for Christian use only. In 2000, the Bahasa Malaysia-translated AlKitab was confiscated by the Special Branch of PDRM from the bookstore of the Daughters of St. Paul in Petaling Jaya.

In 1984, a ministerial order of the Home Ministry made it illegal for non-muslims to use 49 ‘Islamic’ words including ‘Allah’. The Herald, a publication of the Roman Catholic church became a victim of this ban and took their case to court. The high profile case culminated in the federal court affirming the ban in June 2014. In April 2011, fearing a backlash from Christians in the GE13, Putrajaya announced the 10-Points Resolution, exempting non-Muslims in Sabah and Sarawak from the ban but questions are now being asked whether or not the cabinet decision that resulted in the 10-Points Resolution has precedence over a binding judgment of the nation’s apex court.

In Sept 1986, the Federal government and state governments in Peninsular Malaysia agreed to the integration of the Syariah and the Civil Courts. Following a strong protest from the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS) the plan was aborted but not before Tun Salleh Abas, then Lord President remarked that ‘the best changes are those which are imperceptible’. Today, the Attorney General’s Chambers has a Syariah unit whose function, among others, is to take steps towards the realisation of a set of laws and specific body that will be responsible for the harmonisation civil law and syarak.

Over the years, successive prime ministers, from Mahathir to Najib, have made statements that amounted to asserting that Malaysia is an Islamic nation.

Tun Salleh Abas’s words are a reminder of the proverbial “elephant-in-the-room,” a big problem that has gone largely unnoticed and which not too many people are willing to talk about. Part of the reasons why the problem has gone largely unnoticed, is because the changes were not only incremental but were also imperceptible, and also because we have short memory for things that do not inflict severe pain or extreme hardships on us personally.

Through all these, non-muslim Malaysians take comfort in the federal constitution and in the matter of hudud, Article 76A(1) of the Federal Constitution, noting that a two-third majority in the Dewan Rakyat is required to amend that article.

How strong a protection does the Malaysian constitution really gives to a citizen of this country?

Since Malaysia’s federal constitution came into force in Sept 1963, it has seen at least 42 amendments, one of the most profound being the 1993 amendment. This is the amendment which removed the legal immunity of royalty. Mathematically, it is an average of one amendment in every one and a half year. In contrast, the Federal Constitution of Australia which is now 115 years old, has been amended less than ten times only.

This perhaps answers the question that many people may have in their mind; is it all that easy to amend the Federal Constitution? The inevitable conclusion that one may draw from this is that the protection in the constitution is only as strong as the difficulty with which the constitution may be amended.

A prominent professor of constitutional law once remarked (about Malaysia’s constitution),”There is no doubt that the spirit of the original document has been diluted, and that the present Federal Constitution bears only a superficial resemblance of the original document”.

The safeguard it seems lies in the ability to keep the numbers of dissenting MPs at a level that can effectively deny the proponents of hudud the required two-third majority in parliament. But allegations of gerrymandering mixed with the potentials for unusual alliances by MPs who are forced to wrestle with their conscience makes for a very uncertain future.  Throw in consequences of MPs mixing politics and business and becoming subservient to the powers that be and you get the most fluid of situation.

We pray that Malaysians can rise above race and religion and move together on the path to peace and harmony, motivated only by justice and equality.

*Boniface Willy Anak Tumek reads the Malaysian Insider.