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Tuesday, August 30, 2016

How is Act 355 amendment not in the ‘spirit’ of the constitution?


Whenever something about Islam sprouts, Islamophobes are quick to respond. They were concerned that it is against the spirit of the constitution, referring to article 8(1) of the Federal Constitution. Article 8(1) states that all persons are equal before the law and entitled to equal protection of the law.
One has to ask how the amendment of Act 355 can go against the ‘spirit’ of the constitution? Now we need to determine what was meant by ‘spirit’. Isn’t Islam in the ‘spirit’ of the constitution? In case Act 355 was not in line with the Federal Constitution it would not have been there in the first place.
Taking into reference the private member’s bill that was presented by Abdul Hadi Awang on May 26, 2016, the bill seeks to amend Act 355 and not introduce something new. In case the bill was about something new, an entirely new act, then it would have been justified to say it is not in the spirit of the Federal Constitution. However, the Act is not new and has been in existence for quite some time.
Since the Act is already there, then how is the Act not in the spirit of the constitution? How about article 3(1)? Unless Article 3(1) does not carry any weight for them and is being ignored to serve other goals? It has to be stressed that Islam is the only religion mentioned in the constitution. Apart from that we also have 121(1A), that states that the Federal Courts have no jurisdiction of any matter within the jurisdiction of the Syariah Courts.
Syariah Courts can only deliver judgment on Muslims. The Syariah Courts have no jurisdiction over non-Muslims and cannot charge them. Hence the objection to the bill is not justified in any way possible. The act seeks to increase the punishments for crimes and offences under the Syariah Courts. The last amendment to this Act was in 1982 and we have moved by leaps and bounds since then.
The socio-economic developments that Malaysia went through have changed the society. Punishments that were amended in 1982 are no longer severe enough to deter crimes in 2016. RM5,000 is no longer as meaningful as it used to be in 1982. The amendment is seen as an effective deterrence to prevent crimes from happening.
The severity of the punishments are expected to deter the offences punishable under the Syariah Courts. As these punishments involve only Muslims, hence the punishments seek to prevent Muslims from being involved in activities punishable under the Syariah courts.
Another contentious issue is the deliberate association of hudud with the private member’s bill, when in fact it is not related to hudud. Hudud carries capital punishments that are absent in the bill. And hudud includes the punishment for theft, piracy and/or robbery, and these punishments are not under the jurisdiction of the Syariah courts.
Theft and robbery are crimes under the jurisdiction of the Federal Courts. It is neither possible nor fair to call the amendment to Act 355 as hudud.
Concept of repentance
All punishments related to theft and robbery are carried out under the Federal Courts and not the Syariah Courts. One reason Muslims want the bill to be passed is because of the concept of repentance that exists in Islam. We will not indulge ourselves with repentance, that we leave to another day. As for keeping religion out of politics and state, that has to be seen in reference to the constitution of a given country.
For us who live Malaysia, the Federal Constitution is the country’s highest law. Hence whatever inquiries we have pertaining to the status of a religion in Malaysia, the issue has to be referred to the Federal Constitution. As clearly mentioned in the Federal Constitution 3(1),“Islam is the religion of the Federation...” In maintaining the spirit of the Federal Constitution Islam cannot be separated from the state.
Syariah law, has been in place since Batu Bersurat Terengganu dated 1303, and the common law was introduced in 1807 as The First Charter of Justice of Perak. Prior to that, Undang-undang Laut Melaka, Undang-undang 99 Perak, Hukum Kanun Pahang, Undang-undang Sungai Ujong and others were based on the Syariah system and combined with the customary laws of the time.
The common law was absent and the Malay customs and Islamic laws prevailed. We agree that we are not living in the same circumstances as previously, however the status of Islam as the religion of the state remains. This warrants the nation to any sort of law that does not contradict with Islam. Even the current common law practiced in Malaysia falls under the ta’zeer system under the Islamic law.
Whereas ta’zeer maybe used for every citizen of this country however, Syariah is limited to the Muslims only. The syariah courts have no jurisdiction over any citizen professing a religion besides Islam. The concept of justice in the common law is different to the concept of justice under the Syariah Courts.
Giving harsher punishments for crimes can be a used as a prevention mechanism for offences involving Muslims. It is obligatory for Muslims to be subjected to Islamic rules and regulations where applicable. The fear from the non-Muslim community about the implementation of hudud is nothing but unfounded.
Politicians have used fear mongering tactics to keep people from supporting this bill. Regardless if Islam is being politicised or the politics are being Islamised the Syariah courts can only deliver judgments on Muslims.
It is always better to prevent crimes from happening than to punish a criminal. Though the results might not be seen immediately, however in the long term we can all bear witness. We can only wait and see how the Syariah Courts reform the Muslim society in Malaysia.
Allah knows best.

REHAN AHMAD JAMALUDDIN AHMAD is president, Intellectual Wisdom Society. - Mkini

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