JUNE 12 – A group of activists recently applied for a court injunction to stop Parliament from tabling a private member’s Bill that seeks to amend the Shariah Court Act (Criminal Jurisdiction) 1965, or Act 355.

The group of “concerned citizens” — comprising Azira Aziz, Hasbeemasputra Abu Bakar, Hazwany Jamaluddin and lawyer Mansoor Saat — says that attempting to amend Act 355 is a backdoor way of getting around the Federal Constitution to eventually enforce hudud, as a mere amendment to the law only requires a simple majority in Parliament, compared to amending the Constitution that will require a two-thirds majority.

First, to clarify things – Kelantan Deputy Mentri Besar Datuk Mohd Amar Nik Abdullah told Utusan Malaysia last month that if PAS only seeks to amend Act 355, then Kelantan can only legislate against alcohol consumption and extramarital sex – which are existing crimes under Shariah law.

According to him, Kelantan will not be able to legislate under the Shariah law against theft and robbery, which are already crimes under the Penal Code, as seeking state jurisdiction over federal crimes requires an amendment to the Federal Constitution. Nor will the state government be able to punish adultery with stoning or to sentence apostates to death.

If what Amar says is true, then the controversial aspects of hudud — stoning and the amputation of limbs — will be absent from the so-called hudud law in Kelantan. There is also no contradiction with the Federal Constitution as Kelantan is (supposedly) not trying to legislate against crimes under federal jurisdiction like theft and robbery.

Amar does say, however, that Kelantan wants to punish adultery with 100 strokes of whipping. Act 355 currently limits the whipping sentences that Shariah courts can impose to six strokes.

This is, of course, disturbing and our MPs should vote against increasing the whipping limit for extramarital sex.

For the sake of argument, assuming that PAS does intend to implement hudud lock, stock and barrel – together with death by stoning and the chopping off of hands – is filing a court injunction to stop the tabling and debate of PAS president Datuk Seri Abdul Hadi Awang’s private member’s Bill the right thing to do in a democracy?

I argue that it isn’t.

In a country where local council elections are absent and Malaysians only get to cast their vote once every five years, Parliament is the one avenue where the MPs we elect directly get to debate and make laws in the interest of the people.

It is not fair for the group who filed for the court injunction to essentially say that our federal lawmakers are a bunch of “elites” with vested interests.

The 13^th general election saw the highest ever voter turnout in Malaysia at 85 per cent.

Yes, there was gerrymandering which resulted in Barisan Nasional retaining federal power despite Pakatan Rakyat winning the popular vote. But the point is that a large majority of Malaysians voted in, among others, 88 Umno and 21 PAS representatives.

The judiciary is another branch of a democratic government that includes the Legislative and the Executive.

So going to the judiciary for recourse over the hudud Bill (I use the term “hudud” loosely) is not wholly undemocratic. But why file for a court injunction to prevent the Parliament process from even happening in the first place?

We are interfering with democracy by going to the courts first, instead of after the Bill is tabled or passed.

Imagine if a progressive MP wanted to table a private member’s Bill to allow gay marriage in Malaysia and conservative Islamic NGOs filed for a court injunction to stop the tabling of the Bill, on the basis that it violates their religious beliefs.

Would we say that the Muslim groups are right to go to court instead of allowing a healthy debate of gay rights and same-sex marriage?

The job of our MPs, whom we elected directly, is to debate both good and bad laws. We elect them based on the principles they stand for. Even if we disagree with a large number of them (Umno is the biggest party in Parliament), like it or not, we have to live with the laws they make as a democracy follows the will of the majority.  

Democracy is prone to the tyranny of the majority where the rights of minority groups are easily violated. This has been seen in Malaysia in interfaith child custody cases involving Muslim converts, confiscation of Malay-language Christian materials, body snatching cases etc.  

Now there is an attempt to enforce hudud which will give even more power to Islamic authorities that already control the personal lives of Muslims and have, to a degree, some influence over non-Muslims.

So I understand the anxiety of the group of “concerned citizens” in filing for a court injunction to prevent the tabling and debate of the hudud Bill in Parliament where our lawmakers are known to toe the party line, instead of voting based on their own conscience or what’s best for the people.

But we cannot presume that they will always act that way and infringe on the rights of millions of other Malaysians who voted in the Umno and PAS lawmakers and chose them to speak on their behalf. By doing so, we are essentially silencing the voices of our fellow citizens.

Already, Malaysians in general don’t understand the role of our lawmakers in Parliament and expect MPs instead to fix things like blocked drains. We should be enhancing opportunities for MPs to debate important issues in Parliament, instead of taking it away from them.  

The group of “concerned citizens” says that Hadi’s private member’s Bill should be put to a referendum instead.

Putting aside the usual concerns over free and fair elections, a referendum is indeed more direct and participatory than having representatives vote on your behalf.

But does a mere increase in the number of whippings for extramarital sex (as horrific as it is) merit a national referendum?

If PAS expressly says it wants to amend the Federal Constitution to enforce hudud in all its bloody glory, then yes, a referendum is preferable to a vote in Parliament.

Even then, I have my doubts about whether a referendum can accurately represent what people really feel about hudud.

A Merdeka Center survey published in July last year shows 53 per cent of Malaysian respondents overall and 71 per cent of Malay respondents supporting hudud. But only 25 per cent and 30 per cent respectively said the country is ready for hudud.

So it depends on how the question is framed in a referendum. Voters could very well be asked: “Do you support the implementation of hudud because Malaysia is an Islamic country?”

Finally, a referendum is not always the best method; I don’t believe that human rights, for instance, should be put to a vote.

While I applaud Ireland for legalising gay marriage, it shouldn’t have been done via popular vote as things could have very well swung the other way and exemplified the tyranny of the majority.

As much as I have been defending democracy, democracy isn’t necessarily the best model for governance. Besides the flaw of the tyranny of the majority, people may not always choose the right thing to do.

They may vote yes to hudud, exacerbating problems over the increasing institutionalisation of religion in Malaysia.

Rather than just trying to oppose hudud, we should really fight for the entire eradication of the Shariah judicial system so that extramarital sex, alcohol consumption or other offences against the precepts of Islam are not criminalised at all. Let faith be a personal matter.

Malaysians will probably vote no to gay marriage too, if a referendum is ever held here.

But we’re stuck with democracy (for now).

And as long as democracy is here, we should strive to allow people’s voices to be heard in Parliament.

* This is the personal opinion of the columnist.