MARCH 21 — Persatuan Peguam Muslim Malaysia (PPMM), whole-heartedly welcome an applaud the recent stand of the Kelantan State Assembly, which unanimously passed the Syariah Criminal Code (II) (1993) 2015 Enactment. It is positive to note that matured politics still very much exists within our Federation. This is proven by the fact that State Assemblymen from both sides of the factions, i.e PAS and Umno, can cooperate in matters which are important to the public and decisive in the progressive advancement of democracy, at least at the state level, in Kelantan.

However, PPMM is very much disturbed and rebukes the stand of the Malaysian Bar as appearing in its Press Release dated 20.03.2015 titled “Hudud is Unconstitutional, Discriminatory and Divisive” (Malaysian Bar’s Press Release). PPMM is surprised and very much concerned, with this pronouncement of the Malaysian Bar, which PPMM believes, does not reflect the majority view of the members of the Malaysian Bar, and more so, when the contents of that Press Release  in itself, seems to project an opinion which  is unconstitutional!

PPMM believes that the fundamental flaw of the Malaysian Bar’s Press Release stems from the erroneous opinion that the Federal Constitution is structurally secular. As much as the said Malaysian Bar’s Press Release may be correct in saying that nowhere in the Federal Constitution does it envisage a theocratic Islamic State, but similarly nowhere also does the Federal Constitution envisage a complete secular State.

Secularism, according to Merriam-Webster Dictionary is defined as “indifference to or rejection or exclusion of religion and religious considerations”. The Federal Constitution on the other hand, throughout, refers to, acknowledges and provides for the role and position of religion in our Federation. As early as Article 3(1) of the Federal Constitution, it provides “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.” This does not only recognizes the religion of Islam, but also recognizes other religions, within the framework of the Federal Constitution. Thus, it is crystal clear that the Malaysian Bar’s Press Release stand that the Federal Constitution is secular is a gross and fundamental error. With that being clarified, the rest of the views contained in the Malaysian Bar’s Press Release flowing from that erroneous stand, would therefore fall into pieces in a domino effect.

PPMM also notes that every now and again proposers of the view that the Federal Constitution is structurally secular, would very quickly jump to take support for this view from the Supreme Court decision of Che Omar Bin Che Soh v Public Prosecutor [1988] 2 MLJ 55. PPMM states, that a careful and considered analysis of that judgment will prove that Che Omar bin Che Soh does not in any way supports that position. Without going into the full details of the decision of Che Omar bin Che Soh, which should be left for another proper forum i.e the courts, to ventilate in full, PPMM believes it is duty bound to highlight the salient portion of that judgment to point out the errors in the Malaysian Bar’s Press Release, which are as follows:

a)         In Che Omar bin Che Soh, the argument raised therein, was with regards to the voidability of the mandatory death sentence under Drug Trafficking and Fire Arms (Increased Penalties) Act vis-a-vis Article 3 Federal Constitution, in which Salleh Abas LP, said at page 66 therein “…Article 162, on the other hand, purposely preserved the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.” This portion of the judgment refers to secularism pertaining to the Drug Trafficking and Fire Arms (Increased Penalties) Act, and clearly not in any way intended to promote the erroneous view, that the Federal Constitution itself, is structurally secular. Also, at page 57 of the same judgment, His Lordship again stated that “…However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. …”. Surely, again His Lordship in making reference to the word “secular law”, refers to Drug Trafficking and Fire Arms (Increased Penalties) Act, and not the Federal Constitution as a whole!  PPMM humbly opines that the Malaysian Bar’s Press Release is based on a wrongful reading of the decision in Che Omar bin Che Soh.

b)         It must also be noted that the decision in Che Omar bin Che Soh was delivered on 29.02.1988, some 3 months and 12 days prior to the coming into effect of Article 121(1A) of the Federal Constitution, on 10.06.1988. The importance of these historical dates, are that the creation of the Syariah Courts through Ins Act A704, to carry out jurisdiction over matters under Item 1, List II- State List, Ninth Schedule Federal Constitution, which included “…creation and punishment of offences by persons professing the religion of Islam against precepts of that religion,…” would as night follow day, mean that the decision of Che Omar bin Che Soh, putting it at its highest, would have no relevance to the structural position of the Federal Constitution, as amended, post 10.06.1988.

Hence, PPMM believes it was wholly erroneous to justify the view that the Federal Constitution is structurally secular by over stretching the true effect and meaning of the decision in Che Omar bin Che Soh.

Over and above that, the Malaysian Bar’s Press Release has also completely ignored and side stepped the recent decisions of the higher courts in this country, which have constitutionally accepted that Islam is a “basic structure” of the Federal Constitution, and as pronounced in the most recent decision of Menteri Dalam Negeri & Ors v Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 6 MLJ 468, the Court of Appeal through the judgment of Abdul Aziz Ab Rahim JCA, at page 511 para 104 declared: “I would add however that the position of Islam as the religion of the Federation, to my mind imposes certain obligation on the power that be to promote and defend Islam as well to protect its sanctity. … ‘Article 3 is not a mere declaration. But it imposes positive obligation on the Federation to protect, defend, promote Islam and to give effect by appropriate state action, to the injunction of Islam and able to facilitate and encourage people to hold their life according to Islamic injunction spiritual and daily life’.”

PPMM would therefore challenge the Malaysian Bar, in substantiating, how would then the passing of the Syariah Criminal Code (II) (1993) 2015 Enactment by the Kelantan State Legislature, and the forthcoming implementation of Hudud, be unconstitutional?

PPMM also finds the over reliance of the Malaysian Bar’s Press Release on Article 5(1), Article 7(2) and Article 8(1) Federal Constitution, to claim the implementation of Hudud as unconstitutional, is also wrongly based without any proper footing.

Article 5(1) clearly states “No person shall be deprived of his life or personal liberty save in accordance with law.” What the Malaysian Bar’s Press Release failed to identify is that according to Article 160, “ ‘Law’ includes written law…”. Whereas “ ‘Written law’ includes this Constitution and the Constitution of any State.” Also “ ‘State law’ means –(a) any existing law relating to a matter with respect to which the Legislature of a State has power to make law, …: and (b) a law made by the Legislature of a State.” Surely, the Malaysian Bar is not proposing that the Syariah Criminal Code (II) (1993) 2015 Enactment is “not a law”!

Article 7(2) on the other hand is referred to by the Malaysian Bar’s Press Release, prematurely in the sense that it fails to look into the full context of the law of Hudud which also fundamentally rejects the double jeopardy rule, referred to in Article 7(2), under Syariah principles. What would have been more appropriate is for the Malaysian Bar to have consulted proper Islamic scholars, to understand and appreciate the laws of Hudud and Syariah principles, prior to prematurely putting the cart before the horse!

With regards to Article 8(1) on the other hand, it seems the Malaysian Bar’s Press Release has very conveniently ignored the Federal Court decision in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia, Intervener) [2004] 2 MLJ 257, in which Augustine Paul JCA giving the judgment of the Federal Court therein stated at para 59, “…The law that we have referred to thus far makes it clear beyond doubt that there will be a violation of art 8(1) only if a legislation does not apply to a person who is similarly circumstanced as the other persons in the classification — and not to someone like the appellant outside it.…” Clearly, Article 8(1) of the Federal Constitution does not preclude from making reasonable classification of categories, so long as there is no discrimination among the members of that category. Since, the intention and aim of Syariah Criminal Code (II) (1993) 2015 Enactment, is for Hudud to be applicable only on the Muslims, and not the Non-Muslims, so long as there is no discrimination in the application of the Hudud law onto the members of the Muslim faith, to which it is intended to apply, there could be no violation of Article 8(1) Federal Constitution. Interesting to note, Bar Council Malaysia were interveners named as parties in that Federal Court decision. The Malaysian Bar’s Press Release must be condemned in ignoring this position of the law of the Apex Court in which Bar Council of Malaysia applied to intervene, were made parties and participated in the appeal.

Having thus far made its point that Syariah Criminal Code (II) (1993) 2015 Enactment is in no way unconstitutional, the only objective and correct conclusion to be made is, the Malaysian Bar’s negative stand on Hudud, in itself is unconstitutional!

In conclusion, PPMM would now with its arms stretched welcome the implementation of Hudud by aptly applying the Arabic phrase, “Ahlan Wahsahlan Yaa Huddud”, which means “Welcome, Oh Hudud”.

* Zainul Rijal Abu Bakar is the president of PPMM

**This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.