By Danial Ariff Shaari
Recently on Friday night, the liberal and “secular” group called Bebas organized a debate on Abdul Hadi Awang’s proposed amendments to the Syariah Courts (Criminal Jurisdiction) Act 1965.
The private member’s bill tabled in parliament this session by the PAS president is popularly known by its shorthand RUU355.
Bebas chief Azrul Mohd Khalib (pix above) moderated the debate on the motion “RUU355 should be made into law”.
Azrul is personally against RUU355.
Lukman’s correct list of premises
First off the starter’s block, Lukman Sheriff Alias proved his respect for the federal constitution and the law as it is worded.
He also emphasized on the democratic process through which RUU355 and the states’ enactments are debated and eventually passed by our democratically elected representatives.
His premises were:
1. that the proposed amendment is concerned with an existing legislation that has been in existence for more than 50 years. A similar amendment was previously approved in 1984. The current amendment suggested seeks only to increase the limits of punishment for existing syariah offences.
2. that the proposed amendment is well within the prescribed constitutional grant of power to the states. This power can be found under the Ninth Schedule of List II. Even though syariah offences are tried by syariah courts, these courts can only exercise its jurisdiction when it is conferred by a federal law, which in this case is enabled through the Syariah Courts (Criminal Jurisdiction) Act 1965. Therefore, it cannot be said that the proposed amendment will be unconstitutional.
3. that the proposed amendment concerns only procedural law and not substantive law. It is not about adding a new law but rather it aims to increase the sentencing powers of syariah courts over the existing syariah offences. The substantive law is the states’ enactments. A state enactment can only be passed through the state assembly, which means the law will undergo a democratic process.
4. that the proposed amendment (and the existing syariah laws), is not applicable to non-Muslims. Under the Ninth Schedule, it is clearly stated that syariah courts only have jurisdiction over persons professing religion of Islam.
5. that the proposed amendment is not about hudud. Some hudud are not applicable as the relevant crimes fall under the federal jurisdiction which is codified under the Penal Code. Even though the syariah laws in Kelantan exceeds the jurisdiction of the state, it cannot be enforced and has since its enactment been unenforceable. Any syariah law that touches on any offences under the Penal Code is unconstitutional. Regardless, it has never been declared unconstitutional by the courts. Further, some syariah offences do not fall under the hudud category.
6. that the only argument against RUU355 is not a matter of constitutionality, rather on what the limit should be. This deserves a fair argument as it is subjective.
During the wrap-up Q & A session, Lukman gave an answer to such a question asking for the basis of the proposed increment in penalties, saying that parliament is empowered to increase the limits of punishment. The low amount of fine which dates back to more than 30 years ago (1984) may not be much of a deterrent in our present times. Therefore it is befitting that the limits are increased.
Ambiga wrong to cite child custody contestation
Former Bar Council chairman S. Ambiga began her debate by saying she would argue based on the law “as I understand it”.
She also claimed to believe in the supremacy of the constitution.
The following were the arguments put forth by Ambiga, as I understand her to have framed them:
1. The key argument was not so much about punishment but she cautioned the audience to read the proviso. The proviso suggests that the syariah courts shall have jurisdiction to impose punishment for syariah offences other than death sentence. She contended that the specific list of offences is absent and therefore any offences (which may include offences falling under the federal jurisdiction such as those contained in the Penal Code) which are punishable by other than death sentence may be exercised by syariah courts.
Ambiga took Kelantan state’s enactment as an example. Punishment for hudud offences are provided for under the Kelantan enactment and with the passing of RUU355, she claimed, punishment for hudud offences might then be enforceable by syariah courts, which is why it is unconstitutional.
But, this is not the case. See Lukman’s fifth premise above.
2. There are no reasons given apart from the claim to empower the syariah court’s jurisdiction to sentence. The proposed amendment must explain the problems that it aims to solve and how the increase in punishment will tackle such problems. However, Ambiga opined that RUU355 cannot achieve what it seeks to achieve.
Still, consistent with Lukman’s submission, this is a scope on which Lukman is open for debate and discussion. Refer to Lukman’s sixth premise.
3. Alternatively, Ambiga proposed that syariah courts may be strengthened by improving the infrastructure of the courts and other substantive laws such as the family law. Only then would the syariah courts be improved, she added.
This was addressed earlier by Lukman in his opening speech and Lukman reminded the panelists and audience to focus on the motion. The motion concerns RUU355 which is a federal law for the punishments by syariah courts, therefore the discourse should have focussed on debating the punishments and its constitutionality, not other aspects of syariah judiciary system or substantive laws.
4. Ambiga raised concerns over the proportionality of the punishments with the offences committed. As an example, she said that punishment for the syariah offence of alcohol consumption cannot be treated and punished as harshly as the crime of homicide under the Penal Code. She kept insisting that there must be parity.
Again, refer to Lukman’s sixth premise.
5. Lastly, she concluded that there is no specification as to the syariah offences in the amendment — that there must be parity, legal certainty and justice. The parliament, she reminded, has the duty to defend the constitution. She brought up Article 4 which says that the constitution is the supreme law and therefore any amendments or legislation must be confined to the limits prescribed by the constitution. Ambiga also reminded the MPs of their duties to their respective constituents.
Ambiga affirmed that, yes, she agrees that RUU355 does not concern non-Muslims. But nonetheless, being charged is different from being affected. When it plays out, Ambiga contended, the syariah jurisdiction will have an impact on non-Muslims, for example in the tussle for child custody as in the cases involving M. Indira Gandhi and S. Subashini.
However, as Lukman spelled out in his premises, RUU355 does not relate to the law on custody. Custody is not a matter of syariah offences.
Aidil delivered the knockout blow
Aidil Khalid’s presentation provided the bigger picture.
While Lukman placed specific focus on RUU355, Aidil gave an overview: the ideals and conceptions of our constitution in terms both legal and historical.
Aidil started off with the case of Loh Kooi Choon v Government of Malaysia, a judgment by Justice Raja Azlan Shah (as he was then) regarding our federal constitution, that is, the supreme law of our country stands in its own right and must be based on the country’s own principles and tradition. The meaning of Malaya’s independence in 1957 released us and our legal narrative from the colonial dominion or foreign influence.
The Reid Commission in its report considered the nexus between the people during the time of pre-Independence and the existing kadi’s court — a close relationship which eventually evolved into the syariah court as provided for under the constitution.
Aidil also mentioned that following the recent case of Titular Roman Catholic Archbishop of Kuala Lumpur v. the Home Ministry and Government of Malaysia, the courts have taken an affirmative stand to recognize the sanctity of Islam as “the religion of the Federation”. Hence positive obligations have been cast upon the parliament to pave the way towards improving the implementation of Islam and its institutions for the good of Malaysian Muslims.
At the end of his opening speech, Aidil cautioned the audience about attempts to spread Islamophobia among Malaysian non-Muslims such as mischievously bringing up the issue of Acheh Buddhists in Indonesia who had been punished under the province’s syariah law.
(Note: The Buddhists actually chose for their trial to be conducted under syariah.)
Aidil also expressed his concern over those Malaysians who prefer foreign principles without due respect for our nation’s own set of norms, values and culture. This skew towards elevating ideologies borrowed from abroad is detrimental to maintaing peace and harmony in our multiracial and multi-religious society.
Aidil’s arsenal of logic dealt a severe blow to his opponent’s suppositions.
Later during the Q & A session and asked about the basis for increasing the punishments, Aidil affirmed the concept of federalism. This is so, as according to Lukman earlier, RUU355 is a federal law which confers power on the states to make laws for the punishment of syariah offences.
RUU355 is a ticket for state legislatures to exercise their opportunity to democratically debate and pass the proposed amendments on the limits of syariah punishments. The states will individually debate what the ‘had’ (word in Arabic meaning ‘limit’; the plural form of this word is ‘hudud’) should be after RUU355 is approved by parliament and becomes law.
Why deny the states their right to practise democracy, Aidil asked.
When Haris began to speak, I initially thought that he had come to the wrong place. During his speech, I could imagine attending a forum organised by another group debating on whether the syariah courts and syariah offences should be abolished, or a forum on Islamic jurisprudence, but not on RUU355.
The following are some problems with his arguments:
1. He claimed that there are differing point of views in Islamic jurisprudence. At the same time, he insisted that the state must be secular.
In opposing RUU355, he should have not based his judgment on the substantive discussion of Islamic jurisprudence as it will be rendered irrelevant in a secular discourse.
2. He cited the case of Che Omar Che Soh but was rebutted by Aidil in affirming that the word ‘secular’ in the judgment of Tun Salleh Abas referred to the secular law at that time and that there was no declaration of Malaysia being a secular country and nor that Malaysia should aspire to be one.
3. He lambasted the so-called process of “Islam-ISA-tion” (his pun on ‘Islamization’) which includes the empowerment of syariah courts, as if suggesting that syariah courts should no longer exist and must now be abolished. He wants to uphold secularism, remember?
4. He interpreted Islam according to his own personal understanding at his own whim and fancy. Haris’ liberal approach does not hold water in a country where his dissenting views do not coincide with the majority’s.
This was aptly addressed by Lukman when he countered that there is a different epistemology when it comes to Islamic issues. Lukman also appreciated the fact that the majority views are the views of the scholars who have studied Islam long and deeply. Aidil too shared the same thinking.
It comes as no surprise then to hear Haris lament that he is one of the singular Muslims who is being coerced by the majority in Malaysia.
Haris also said in his closing speech that his right to privacy is infringed, meaning to suggest that the religious authorities should not be bothering people who commit sin.
My honest finding
Given the indisputable premises by Lukman which are consistent with Aidil’s ideals and conceptions, and given the arguments by Ambiga drifting away from the motion and Haris who lost track of the legal and factual reality, with all due respect, I submit that the motion should be allowed.
Danial Ariff Shaari is an Isma activist trained in law