Malaysiakini published an article on Oct 19, 2016, titled ‘Hadi’s hudud bill not for Malaysia’. This time the article shared the views of Baru Bian of PKR. He is also the state assemblyperson for Ba’kelalan, Sarawak. Baru accused PAS of merging with Umno to gain support in western Malaysia. They call it ‘Malaya’ in Sarawak. Let’s look into some of the points raised by Baru.

We will not be defending Umno or PAS in this article. Instead we prefer to clarify issues pertaining to the Federal Constitution. Baru said that this bill will affect everyone, including non-Muslims. The bill in reference is the private member’s bill by Abdul Hadi to amend Act 355.

Apparently many are still ignorant of the Federal Constitution, notwithstanding being lawyers. We will first explain the powers given to the Syariah Courts by the Federal Constitution. The Syariah Courts are given powers over matters listed in Item 1 of the State List in the Ninth Schedule of the Federal Constitution.

There is an exhaustive list of punishments that are under the jurisdiction of Syariah Courts. The list is as given below,

1. except with respect to the Federal territories of Kuala Lumpur, Labuan and putrajaya, islamic law and personal and family law of persons professing the religion of islam, including the islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and baitulmal or similar islamic religious revenue; mosques or any islamic public place of worship, creation and punishment of offences by persons professing the religion of islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of islam; the determination of matters of islamic law and doctrine and Malay custom.

As can be read in the list, the list of offences that can be punished is exhaustive and only for Muslims. Though this has been explained in detail many times but some still prefer to repeat their mistakes. Probably we need more efforts explaining the constitution to the populace. The constitution should be read as it is, we can’t make assumptions on the content of the Federal Constitution.

Another point by Baru that caught our attention was, “The supremacy of secular law under Article 142 of the Federal Constitution in Malaysia has been upheld in the landmark case of Che Omar bin Che Soh vs PP by the Supreme Court”. We could not find anything with regards to secularism and/or a secular legal system anywhere in the Federal Constitution.

The word “secular” does not exist in the Federal Constitution of Malaysia. Albeit the word might exist in the constitution of other nations, but that is not relevant to the topic at hand. We move on to another point made, “The Lord President held that Article 3, which recognises Islam as the official religion of the federation, was never meant to extend the application of syariah to the sphere of public law.”.

Article 3 does not state Islam as the official religion. What Article 3(1) actually says is, “Islam is the religion of the Federation;”. The word ‘official’ does not exist, with regards to Islam. In other words, Islam is not merely the official religion. Islam is ‘The Religion’ of Malaysia. Secondly the claim that Syariah was never meant to be enforced on the public. We explained earlier in reference to Item 1 of the State List.

Going on, Baru said that the freedom of religion in Malaysia is “illusory” for many. That statement seems to be an oxymoron. Baru is a Christian, but yet there is no freedom of religion. He must have been forced to become a Christian. We should ask him to report the people who probably coerced him into accepting his religion. Baru definitely does not like Article 11 of the Federal Constitution.

Double standards fallacy

Baru refers to the constitution in a very misleading manner, and dislikes some parts of the constitution. There is no consistency apparently, there is however a double standards fallacy. Rules for Baru are different, he can choose the parts of the constitution he likes, and depart from those he does not.

He could not agree to the entire constitution, as there exist parts that are not of his interests. What we see is an effort to misrepresent the constitution through biased methods. The ideals held by Baru seem to want democracy but somehow the majority is not right this time.

The majority is only right if the minority says they are. We should at least change the name to something else. Democracy in this case seems to be a misnomer. According to Baru there Malaysia lacks freedom of religion. One has to ask, if Baru is happy and freely professing his religion or was he forced to?

The idea of freedom in this case is very vague. Not much can be done for those who assume they are being oppressed. The oppression in this case is superficial. Many claim oppression but are free to go on with their business. We have people who claim that Malaysia is secular despite the absence of the term in the Federal Constitution. The same people can not prove that Malaysia is a secular state.

There have been efforts to reinterpret the Federal Constitution as we can see. Reinterpretation is a subtle word for misleading in this case. It does not befit those who claim to be learned to commit such acts.

The harmony of a nation is based upon the respect and adherence to her values, cultures and norms. The Federal Constitution is Islamic at heart and ‘Islam’ is mentioned by name. That is both an honour and assertion.

To those who lack knowledge on the Federal Constitution, we hope that they can seek more information from the correct sources. In today’s world, obtaining true information is a privilege rather than a right. People are in a credulous state these days. Believing in most of what they hear or read. Keeping that in mind, we have to share the truth and nothing but the truth.

We all should remain steadfast as responsible citizens. We have a responsibility towards the nation and each other to uphold. May our nation prosper together with us.

REHAN AHMAD JAMALUDDIN AHMAD is research fellow, Institut Kajian Strategik Islam Malaysia (Iksim).