Malaysiakini Letter

Renegotiate constitution if Kelantan must have hudud

Civil Society Organisations of Sabah and Sarawak  |  Published:  |  Modified:

We - Civil Society Organisations of Sabah and Sarawak - hereby urge a thorough renegotiation of the federal constitution if Kelantan insists to enforce its Syariah Criminal Code II (1993) 2015.

We solemnly hold the following positions:

1. In forming Malaysia with Malaya and Singapore in 1963, Sabah and Sarawak signed up for a secular federation, not a theocratic one where any religious criminal justice system may be in force in any part of the federation.

2. Religious freedom was amongst the top demands of Sabah and Sarawak in the Malaysia negotiations which produced the Inter-Governmental Committee Report and eventually the 1963 Malaysia Agreement. Sabah and Sarawak would not have been part of Malaysia if Syariah criminal law was an item in the negotiation.

3. Secular justice system on crimes as a federal jurisdiction is part of the entire constitutional package embodied in the Ninth Schedule of the federal constitution. Any fundamental change to this packaged deal requires a thorough renegotiation of the federal constitution.

4. Sabahans and Sarawakians are legitimate stakeholders in the Kelantan Syariah Criminal Code II (1993) 2015 for if the enactment comes into force, these are amongst the consequences:

a. If Sabahans and Sarawakians - regardless of faith - fell prey to thefts, robberies, homicides and bodily harms committed by Muslims, their cases will be tried in the Syariah court, and not Common law Court. [Section 2 of the Code]

b. Sabahans and Sarawakians will not have full testifying competence in Syariah Court if they are non-Muslim, women, under-aged Muslims or Muslims with questionable religious conducts. [Section 41 of the Code, and Sections 83 and 86 of Kelantan Evidence Enactment of Syariah Court 2002]

c. Sabahan and Sarawakian Muslims are accused of stealing or robbing of anything worth more than 4.45 gram of gold (about RM 620 at current price), they will be tried in Syariah Court and may face the punishment of amputation. [Sections 6-11 of the Code]

d. Sabahan and Sarawakian Muslims who are convicted of adultery or sodomy in Kelantan may face death penalty by way of stoning. [Sections 12-15]

e. Sabahan and Sarawakian Muslims who are convicted of drinking in Kelantan may face 40 to 80 lashes. [Section 22]

f. Sabahan and Sarawakian Muslims who are convicted of heresy [irtidad or riddah] may face the death penalty and forfeiture of all properties. [Section 23]

g. Murderers of Sabahans and Sarawakians will escape the death penalty when the prosecution cannot produce testimonies by two good adult male Muslims.

5. The first and foremost issue in Kelantan’s claim to enforce syariah criminal law is not democracy, but sovereignty. As a sovereign nation, Brunei can enforce syariah criminal law even though it is not a democracy. Even if the Code has been democratically deliberated, rather than concealed from prior public scrutiny, Kelantan has no constitutional competence to enforce the Code because Kelantan is not a sovereign country like Brunei.

Sabah and Sarawak objecting to the Code is therefore not infringing Kelantanese’ democratic aspiration.

Constitutional coup against Malaysia Agreement

6. If Kelantan is given the power over criminal justice under Article 76A - whether through a government bill or private member’s bill - it will be a constitutional coup against the 1963 Malaysia Agreement, no less than advocacy of separatism. By skirting the need of a two-third parliamentary majority to amend the Ninth Schedule, a bill under Article 76A undermines the veto potential of the 57 parliamentarians from East Malaysia.

It will effectively not just write off the status of Sabah and Sarawak as equal partners of Malaya, but even places Sabah and Sarawak as constitutionally inferior to one of Malaya’s states.

7. If Kelantan insists to enforce its Syariah Criminal Code, then Malaysia needs to have a new federal constitution.

To prevent a constitutional crisis that erodes the moral basis of Malaysia as a nation, we urge the federal government or the Sabah and Sarawak state governments to convene a Malaysia Summit attended by all lawmakers and executive branch at the federal and state levels to deliberate on a new federal constitutional arrangement, whereby Sabah and Sarawak may have other rights devolved if Kelantan were to have its own criminal justice system.

Endorsed by the following Organisations of Sabah and Sarawak:

1. Archdiocesan Human Development Commission (AHDC) Kota Kinabalu, Sabah,

2. Baramkini,

3. Belia Saint Aloysius Limbanak, Sabah,

4. Borneo’s Plight in Malaysia Foundation (BoPiM),

5. Borneo Resources Institute Malaysia, Sarawak (Brimas),

6. Consumer Association And Protection Sabah (CAPS),

7. Cornerstone Resources Berhad, Sabah,

8. Damn the Dams, Sarawak,

9. Gerakan Anak Sarawak (Gasak),

10. Institute for Development of Alternative Living (Ideal),

11. Jaringan Orang Asal SeMalaysia (JOAS),

12. Jaringan Tanah Hak Adat Bangsa Asal Sarawak (Tahabas),

13. Komiti Belia Perlaksana Child of Jesus, Sabah,

14. Komiti Belia Perlaksana Minintod, Sabah,

15. Land, Empowerment, Animal, People (Leap), Sabah,

16. Malaysian Trades Union Congress (MTUC), Sabah Division,

17. Northern Green Youth, Sarawak,

18. Pacos Trust, Sabah,

19. People’s Green Coalition, Sarawak,

20. Pusat Sumber Adat dan Mediasi Kaum Anak Negeri Sabah (Pusaka),

21. Rise Of Sarawak Efforts (Rose),

22. Sabah Banking Employees’ Union,

23. Sabah Environmental Protection Association (Sepa),

24. Sabah Women’s Action Resource Group (Sawo),

25. Saccess Sarawak,

26. SALT Movement,

27. Sarawak Dayak Indigenous Association (Sadia),

28. Sarawak Women for Women Society (SWWS),

29. Save Rivers Sarawak,

30. Sembang-Sembang Forum, Sarawak,

31. St Marcellinus Church, Minintod, Sabah,

32. St Theresa Child of Jesus Church, Sabah,

33. Tim Pelayanan Belia Paroki Penampang, Sabah.

Hudud will force ‘re-negotiation of deal’

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