Dr M’s 1988 constitutional amendments set the stage for hudud

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YOURSAY | ‘Have the chickens come home to roost or is it the law of unintended consequences, or both?’

Setting the record straight on hudud and the constitution

Just a Malaysian: It is nice to see an argument laid out intelligently and calmly and with full respect of the opposite side. Kudos to both writers for such civility.

We have been so used to be shouted down, threatened or insulted each time a non-Muslim view is presented. More of these type of discourses will be good to educate each other on different points of view.

Dizzer: I agree with Just a Malaysian that it's nice to see a sensible debate. It's even nicer to see two Muslims using legal/rational arguments with reference to the constitution rather than the standard Malaysian approach of “it must be right because someone told me it says so in the holy book”. I'll google Articles 3, 8, and 121 and check for myself.

Am I right in thinking that Mohamad Siddiq Azani and Fatihah Jamhari are correct? The broadly secular constitution was paramount until 1988, but then it changed.

Shan Kanesalingam from the Bar Council writes: "Parliament, the Government and the Judiciary are all meant to be equal and independent bodies, checking and balancing one another so that no one person or body usurps too much power onto itself. But in 1988, two very significant amendments were made to the Federal Constitution.

“The material part of clause (1) of Article 121 used to say: “... the judicial power of the Federation shall be vested” in the High Court. After 1988, Article 121(1) said that the High Court “shall have such jurisdiction and powers as may be conferred by or under federal law”.

The second significant amendment in 1988 was the inclusion of new clause (1A) into Article 121 that stated: “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”

Fair Play: Now, coming back to the 1988 amendments to the federal constitution. Have the chickens come home to roost or is it the law of unintended consequences, or both?

Perhaps, Dr Mahathir Mohamad would have time to dwell on his supreme effort in dividing the 64 percent from the 36 percent of the population for political expediency at that time and set the civil courts and the syariah courts onto an inevitable collision course and tear the nation asunder in the years ahead.

ACR: In the Sheikh Abdul Latif v Shaik Elias Bux case in 1915, Edmond JC noted the only law applicable to Malays was Islamic law modified by custom.

It was inconsequential to deliberations made by the Reid Commission 40 years later when the country was on the verge of independence and its demography different.

The Alliance memorandum to the Reid Commission noted that though Islam is the official religion, it does not imply that the country was not secular. Nations which are identified as Islamic states have only syariah law in place and are nearly 100 percent Muslim.

Hybrid nations like ours are not Islamic states as only Islamic personal law is applied on Muslim citizens and there is an entrenched common law/civil court tradition.

Abdul Hadi Awang's bill is a travesty as it sought to enhance punishment for existing syariah offences which rightly comes under civil law jurisdiction.

Article 121 (1A) is Mahathir's doing for political expediency and does not reflect the spirit of 1957. We should have a bill to revert to the Merdeka Constitution.

Kawak: Were Sabah and Sarawak were under Islamic law before the British came? The writers' argument may be applicable to the old Malaya rather the present Malaysia. I hope they will take note of this mistake.

Multi Racial: Segregation of religion from government is necessary not to protect the people from the government but to protect the government from extremism.

Just take a look around the world. Countries where their governments were hijacked by religious extremism have gone backward and not forward.

All Malaysians including politicians should learn from this. Keep religion and government segregated. Let the religious people take care of religion while the government take care of the governing the country without interference from any religion.

RR: Non-Muslims who are more than 40 percent of the country have actually no business to comment on hudud law, but the silent majority of Malay Muslims are scared to be labelled as kafirs.

But they should wake up to express their views to be moderate and modern Muslims in this progressive world.

They can't depend on non-Muslims to fight for their welfare and well-being. Fanatics will always hijack the country for their vested interests.

Rick Teo: Only a silly fool can say that non-Muslims have no business to comment on hudud law.

Hudud law will invariably affect non-Muslims and they have cause to fear that if implemented, it will certainly affect their position when crimes are committed by Muslims on non-Muslims or vice versa.

How can one be so naive to say we have no right to comment when its legislation will affect our lives? The only assumption that it will not affect non-Muslims are when non-Muslims and Muslims do not interact and lead completely separate lives.

That way hudud law can exclusively be implemented only on Muslims.

Anonymous #40538199: We have good laws/policies but they always ended up being badly implemented.

Like the New Economic Policy (NEP), which was supposed to assist the bumiputera but ended up enriching the cronies and disadvantaging the minorities. Instead of helping us to restructure the society, it keeps reminding us of our differences.

We will not stand united as a nation if we are divided along racial or religious lines. Worse still, if we institutionalise such divisions. - Mkini