MAY 19 — I cannot thank enough the 20 towering Borneans for their eloquent articulation in the open letter on May 7 titled “For Malaysia’s Sake, No to Bill 355”.
Incidentally, in true Bornean spirit, the letter was published not only in English, but also in Malay, Kadazandusun and Iban.
For ease of reference, let’s call them G20. I cannot help but to think of G25, the inclusive-minded eminent Malays, which came into the being after an open letter in December 8, 2014 calling for open debates on Islamic law. I long to see G20 grows into a formidable force in defending Malaysia under the visionary leadership of Dr Johan Arriffin and Tan Sri Simon Sipaun, the proud sons of Sabah.
The G20 letter outlines clearly what Malaysia means for true Sabahans and Sarawakians – in 1963, our forefathers signed up for a secular federation, not a theocratic union where religious misconducts can be punished more harshly than robbery.
This unfortunately seems to be beyond the comprehension of PAS Sabah which three days later asked G20 to prove how the Malaysia Agreement 1963 (MA63) has been breached with Hadi Awang’s Bill 355 and raised a few other questions.
Having read in joy the G20 letter over and over, I feel compelled to respond to PAS Sabah as the answers to its questions were embedded in the letter, as if those questions were pre-empted at the time of writing.
And in the age of internet, with the useful pointers given by the G20 letter, you do not even have to be in Malaysia to get the relevant documents and correct facts. For ease of reading, I re-arrange all PAS Sabah’s contentions into the form of questions and offer my answers. I stand corrected if I have misunderstood the G20 letter.
Question 1: How does Bill 355 breach MA63?
Answer: Yes. MA63 was a treaty between UK, Malaya, North Borneo, Sarawak and Singapore to realise the formation of Malaysia with substantial modifications to the Federal Constitution and political structure of Malaya. Any alteration of the basic structure of the Federal Constitution in 1963 is a breach of MA63.
The secular nature of Malaysia is not only provided by Articles 3 (religion of the Federation) and 10 (religious freedom), but most importantly reflected in the Ninth Schedule, which tasks the Federal Government with a secular judicial system (Item 4, Federal List) and limits the States’ power on Syariah laws to personal and family matters (Item 1, State List). Exactly for this reason, punishment of Muslims’ religious misconduct is restricted by the Syariah Courts (Criminal Jurisdiction) Act [Act 355] to preserve proportionality of the gravity of crimes and punishments in both civil and syariah courts.
Hadi’s Bill 355 wants personal sins to be punished more harshly than crimes against others. How can that not breach MA63 when it could have made Malaysia impossible? “Had Hudud punishments been on the cards, the Malaysia project would have likely been rejected by the peoples of Sabah and Sarawak,” the G20 statement has said it aptly.
Question 2: Will the passing of Bill 355 immediately enable Hudud punishments?
Answer: Yes. PAS Sabah tries to confuse us with Hudud offences and Hudud punishments. Sabah’s own Syariah law includes three Hudud offences: drinking, adultery and qazaf, why aren’t Sabahans alarmed? Exactly because of Act 355, the Sabah enactment caps the punishments to 3 years of imprisonment, RM 5,000 in fine and 6 strokes of the whip (the 3-5-6 limit). However, unlike rule-abiding Sabah, Kelantan (1993) and Terengganu (2005) defied federal laws and introduced Hudud punishments for not only drinking, adultery or qazaf, but even for thefts and robbery.
It is utterly dishonest for PAS -- a party that makes implementing Hudud punishments its raison d’etre – now tries to conceal its potential achievements. If PAS Sabah has been blindly following Kelantan and Terengganu, it should start reading Kelantan Syariah Criminal Code (II) (1993) (2015) and Terengganu Syariah Criminal Offence (Hudud and Qisas) Enactment, which are available on www.cljlaw.com and www2.esyariah.gov.my.
PAS Sabah, here are the Hudud punishments that will be enabled by Hadi’s Bill 355:
(a) Adultery, for unmarried offenders, 100 strokes (Kelantan, Section 13; Terengganu, Section 13)
(b) Qazaf (wrongful accusation of adultery or sodomy), 80 strokes (Kelantan, Section 18; Terengganu, Section 8)
(c) Drinking, 40-80 strokes (Kelantan, Section 22; Terengganu, Sections 5-6)
Question 3: Will Bill 355 affect non-Muslims?
Answer: Yes. The G20 letter reminds us many non-Muslims are involuntarily made “Muslims” by false registration (natives), forced conversions (orphans) and unilateral conversions (by parent converted to Islam) and leaving Islam is almost impossible.
PAS Sabah dares not deny these facts but again tries to confuse us by saying “RUU355 is criminal matter while the example givens are civil matters”. Let us clear this confusion with this hypothetical example: David is falsely registered as a Muslim called Daud, if he drinks in Kelantan to celebrate Kaamatan, will he not be affected by RUU355?
Question 4: How to upgrade Syariah Laws in Sabah besides increasing punishments?
Answer: As the first step, treat male and female witnesses equally. The G20 letter rightly points out that “Syariah Courts can and should be strengthened in many aspects, from personnel to judicial processes to enforcement of sentences”. PAS Sabah asks for specific ideas. Those of us who have experienced or studied the legal process in syariah courts may know most Syariah laws still treat female witnesses as inferior to male witnesses. Sabah is unfortunately no exception.
To give an example, Section 86(5) of Sabah’s Syariah Courts Evidence Enactment 2004 states that “(5) Except as otherwise provided in this section, evidence shall be given by two male witnesses or by one male and two female witnesses.” Is PAS Sabah ready to fight to make Syariah Courts equally gender-friendly like Civil Courts?
Malaysia as a secular federation
PAS may find it easy to make the claims in Malaya that all Muslims must support implementation of Hudud punishments and Malaysia is not a secular state just because Islam is the “religion of the Federation”.
But here we are in Sabah. We are not “katak di bawah tempurung”. We will not call UK an Anglican State just because Anglicanism is the established faith of England and 26 Senior Bishops sit in the House of Lord. Neither do we follow blindly some politicians just because they look pious.
Here in Sabah, we read and we think for ourselves.
Too bad if some Malayans find it inconvenient, but Sabahans and Sarawakians – Muslims and non-Muslims alike – only accept Malaysia as a secular federation. It is time for PAS and Umno to accept this reality as well.
* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.