COMMENT The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism & Taoism (MCCBCHST) does not agree with the proposed introduction of hudud in Malaysia.

This is because hudud will undermine the basic structure of the Federal Constitution and will change our present legal system. It will also undermine the Rukun Negara and non-Muslim rights. It will be unconstitutional.

It is noted that when Malaya gained Independence in 1957, it was never in the contemplation of any party to introduce hudud in this country. The Reid Commission’s report, the Alliance Memorandum submitted to the Reid Commission and the White Paper issued by the British government in June 1957, all of which formed the basis of the Federal Constitution, state that Malaya is a secular country.

The Proclamation of Independence was read out by Prime Minister Tunku Abdul Rahman Putra on Aug 31, 1957, on behalf of the people of Independent Malaya, and it included the stirring words: “...and to provide for the peaceful and orderly advancement of Persekutuan Tanah Melayu as a constitutional monarchy”.

Further, in a debate the Federal Legislative Council in 1958, the prime minister stated: “I would like to make it clear that this country is not an Islamic state as it is generally understood, we merely provide that Islam shall be the official religion of the state”.

MCCBCHST  highly respects and unequivocally accepts and supports the position of Islam as the religion of the federation as provided in Article 3. MCCBCHST's opposition to the introduction of hudud as the Islamic penal code in the country is based on the constitution, and the fact that it will significantly impact non-Muslims and their way of life that has been guaranteed to every citizen of the country by the constitution.

I. The Kelantan Syariah Criminal Enactment (Hudud) 1993

This enactment is unconstitutional for the following reasons:

i. It will offend the basic structure doctrine.

Malaysia is a country founded on parliamentary democracy, where the Federal Constitution is supreme, as declared by Article 4 of the constitution. On the other hand, hudud derives its ultimate authority from the Holy Quran, which is only possible under a theocracy and thus would change the basic structure of the constitution from a parliamentary democracy to Islamic theocracy.

Thus, this change will offend the basic structure of the constitution and be unconstitutional.

In the Indian Supreme Court case of Kesavananda Bharati vs the state of Kerala, the court held that in any country where the constitution is supreme, there must be an implied restriction of the power of the Parliament to change the basic structure of the constitution.

The 1957 constitution shows a clear intention to allocate penal powers to the federal government and to confer on the states residual powers over minor syariah offences only.

The criminal law and procedure is specifically included under the Federal List (see Schedule 9, List 1 Paragraph 4)

Under Schedule 9, List II Paragraph 1, the states have power to create and punish for offences under Islam, subject to a number of significant exceptions that is:

(a) Firstly, the state legislative authority, in respect of “creation and punishment of offences by persons professing the religion of Islam”, is limited by the words ”... except in regard to matters included in the Federal List”. Among matters specifically included in the Federal List are “civil and criminal law and procedure”.

(b.) Second, the authority to legislate on Islamic crimes is further qualified by the words “or dealt with by federal Law: in Schedule 9 List I Paragraph 4(h) and the Federal Penal Code.

The state's residual powers are over syariah offences such as khalwat, zina, skipping of Friday prayers and failure to observe the compulsory fasting during Ramadhan.

The state has no authority to make laws on matters included in the Federal List and hudud offences of theft, robbery, unlawful carnal intercourse are already offences under the Federal List, thus putting these offences beyond the power of the states.

ii. Introduction of hudud will conflict with Article 75 of the Federal Constitution, which states: “If any state law is inconsistent with a federal law, the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.”

iii. Hudud, if implemented, will create a dual criminal legal system to run side by side with the Federal Penal Code. This will be unconstitutional. This will also undermine the following fundamental rights:

a. Article 8(1): Equality before the law

We cannot have, for the same offence, people being judged differently and sentences meted out differently.

b. Article 5: Right to life or personal liberty

The right to life includes the right not to be subject to torture, inhumane or degrading treatment or punishment.

iv. Article 74(i) provides that Parliament may make laws with respect to any of the matters enumerated in the Federal List or the concurrent list (that is to say, the First or the Third List set out in the Ninth Schedule).

Whereas, Article 74(2) provides that “the legislature of a state may make laws with respect to any of the matters enumerated in the Second List (that is to say, the Second List as set out in the Ninth Schedule) or the concurrent List”.

v. The Syariah Courts (Criminal Jurisdiction) Act 1965, as amended in 1984, provides for the jurisdiction of syariah courts over Muslims only, who may be tried for offences punishable with imprisonment of up to three years or a fine of up to RM5,000.00 or with whipping not exceeding six strokes, or with any combination of these. These cover minor offences, such as khalwat, skipping Friday prayers, failure to observe compulsory fast during Ramadhan, etc.

vi. Article 76A, which is a general provision, cannot be used to over-ride specific provisions of the Federal Constitution, as listed from (i) to (vi) above, without these specific provisions and the Federal Penal Code being amended first. The Kelantan Bill will also offend the basic structure doctrine that will make the Kelantan Bill unconstitutional.

II. Hudud will undermine non-Muslim rights, as the following show:

i. Under an Islamic theocracy, God’s law is supreme. Therefore the Federal Constitution and rule of law will suffer. This will undermine the fundamental rights guaranteed to citizens under the constitution.

ii. A non-Muslim cannot be a witness under syariah law. In most hudud offences, the victim must produce four male Muslim witnesses of good character to give evidence on his or her behalf.

iii. In our multi-cultural country, people of different faiths live side by side. When crime is committed, involving Muslims and non-Muslims, then which court will have jurisdiction? Even now, tussles are going on in conversion cases.

iv. In rape cases, the burden is on the rape victim (the woman) to produce four adult male Muslim witnesses - which in most cases will be impossible. Thus, the victim can be punished for zina, while the perpetrators of crime go free.

v. In hudud practising countries, the non-Muslims do not have equal rights and religious freedom is curtailed. In Saudi Arabia, no non-Muslim place of worship is allowed to be built. Even now, with hudud not being in force in malaysia, we hear cases of the conversion of children, children being taken away from their mothers, the snatching of babies, the snatching of bodies and so on.

vi. Some hudud proponents say, it will not affect non-Muslims. This cannot be true. The first thing is that hudud will undermine the basic structure of the Federal Constitution and our fundamental liberties will be over-ridden. These will definitely affect everybody, including non-Muslims and their freedom of religion.

The Kelantan Syariah Criminal Enactment (Hudud) 1993 seems to recognise this, for it provides in Section 56(2) that a non-Muslim can elect to come under the Syariah Enactment. This “choice” given by this enactment is unconstitutional as jurisdiction is given by law. It cannot be obtained by submission or acceptance.

Further, in Section 57 of the enactment, which provides for offences of abetment, conspiracy or plot, the wording is wide enough to cover even non-Muslims.

Therefore, MCCBCHST hopes and prays that the Hudud Bill will not be introduced in Parliament. Such a Bill will have the effect of dividing the country down the middle, a division that should be avoided at all costs.

JAGIR SINGH is president of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism & Taoism (MCCBCHST).