COMMENT During the last general election, MCA was heavily criticised for much of its campaign which was focused on convincing the voters that hudud law will be implemented in this country should PAS be voted into power.

Many condemned MCA for engaging in the so-called “fear-mongering tactic” in its attempt to wrest more seats after its dismal performance in 2008.

As a result, MCA was punished at the ballot boxes despite the various advertisements in major newspapers on the effect of PAS being voted into power and thus the implementation of hudud.

 

In countering the MCA’s campaign then, DAP, which is MCA’s nemesis, had instead gone around campaigning for PAS and attempted to convince the voters that there is nothing to fear about the implementation of hudud if one does not steal of rob.

This propaganda seems to have struck a chord with certain segments of the community, especially the Chinese community, during the 13th general election.

 

In the same vein, PAS has reassured the non-Muslim voters that there is nothing to fear about hudud as it will not be implemented on the non-Muslims.

In fact, in order to allay any fear or suspicion that the non-Muslim voters may have about PAS, PAS had went on further to say that if it is elected into power, it shall seek to establish a welfare state. And these assurances came from no other than the PAS president, Abdul Hadi Awang.

 

Eventually, Pakatan Rakyat, which PAS is a member of, went into Parliament with a greater number of members of Parliament (and state assemblypersons) and it was one election where they almost took over the administration of the country.

MCA no fortune teller, but...

 

Fast forward to April 2014, contrary to the assurances by PAS in the previous general election, the menteri besar of Kelantan from PAS informed the public of its intention to implement hudud in the state.

And true enough, in March 2015, amendments on the existing Kelantan Syariah Criminal Enactment (II) 1993 was passed and the PAS president, who is also the Member of Parliament for Marang, had, on March 18, 2015, tabled a private member’s bill in the Parliament to expand the jurisdiction of the Syariah Courts in order for the PAS-led Kelantan government to implement hudud.

 

On hindsight, MCA appears to have correctly predicted what was going to happen, but it is no fortune teller, its prediction was based on its understanding of PAS’ ultimate objective which is clearly stated in the party’s constitution - to establish an Islamic state.

 

Notwithstanding these historical facts, the more important issue at hand is whether or not the implementation of hudud will affect our country as a whole.

 

To say that the implementation of hudud will not affect the non-Muslims as it will not be used against the non-Muslims is ignorant and overly simplistic.

The truth is that the implementation of hudud in any part of this country will contravene not just the provisions in the federal constitution, but also change the basic structure of our federal constitution, and the spirit of which this country was founded upon.

 

During the foundation of this country, our forefathers have on many occasions confirmed that Malaysia is a secular state.

Be it through the Alliance Memorandum given to the British in 1956, or the motion in support of the Constitutional Bill in Parliament by the former president of MCA Tan Siew Sin in July 1957, or the statement by Tunku Abdul Rahman ( right ) in May 1958 in Parliament, they all point towards one direction, that is whilst Islam is the official religion of this country, it shall not in any way imply that our beloved nation is not a secular state.

Post-Merdeka, this line of argument was also reaffirmed in the statements of our first and third prime ministers, at least, in February 1983 and more importantly, this was confirmed by the Supreme Court in the case of Che Omar Bin Che Soh vs Public Prosecutor.

Things will change with hudud

 

However, all these would change if we are to allow hudud to be implemented in any part of this country.

Hudud is in itself an element of the Islamic criminal law, where it is a set of laws based on the Islamic holy text. It is not a set of laws enacted by the Parliament based on the wants and needs of society like the Penal Code.

As much as we respect that it is a set of laws based on the Islamic holy text, where the Muslims are supposed to accept, follow and observe it as part of their faith, the implementation of hudud will change the basic structure of the federal constitution which is secular or, as some academics may argue, a mixture of secularism and Islamic principles.

Either way, Malaysia is not an Islamic theocratic state like Saudi Arabia or Iraq. But the implementation of hudud will change this, where our nation will be redefined as an Islamic theocratic state.

 

Apart from the change to the basic structure of our federal constitution, the implementation of hudud will also blur the line that divides the jurisdictions of the federation and the states.

Schedule 9 of the federal constitution provides the federation with the power to legislate criminal laws through the Parliament while the ambit of the powers of the states is only limited to Islamic personal laws.

In summary, the states only have the powers to legislate laws relating to Muslims in respect of personal laws such as family and estate matters, but it was never intended by the draftsmen of our federal constitution nor our forefathers to extend this jurisdiction to incorporate criminal laws.

 

To extend the powers of the states to cover criminal laws would not only lead to a conflict of jurisdictions between the Parliament and the state assemblies, it will also lead to a conflict of jurisdictions between the civil courts and the Syariah Courts.

Double jeopardy

For instance, in the event a hudud offence like theft is committed by a Muslim accused, which set of laws will apply and which court will the accused be tried in? Will he be tried under Section 379 of the Penal Code before the civil court or will he be tried under the state’s hudud enactment before the syariah court?

 

In addition to the above, assuming that the accused is tried in the syariah court but acquitted due to the fact that there is no witness who fulfils the requirements of the Kelantan Syariah Criminal Code (II) 1993 (which only recognises pious, male Muslim), will the accused then be tried under the Penal Code before the civil court for the same offence? If that is the case, wouldn’t it be unfair for the accused who will be tried twice for the same offence?

 

Similarly, a Muslim accused who has committed the crime of theft or robbery in Kelantan will not be treated the same way as a Muslim accused who commit similar offence elsewhere in Malaysia.

The Muslim accused who is tried in Kelantan may be charged under the Penal Code or the Kelantan hudud enactment whereas the Muslim accused who had committed a similar crime elsewhere will certainly be tried before the civil courts under the Penal Code.

 

This will have significant impact on the accused, especially when it comes to evidential rules and procedures, as well as the punishments that flow as a result.

The Muslim accused in Kelantan who is charged under the hudud enactment will only be convicted if there are at least two pious Muslim male witnesses where circumstantial evidence have little or no role to play, but the accused outside Kelantan may be convicted based solely on circumstantial evidence.

Upon conviction, the accused in Kelantan may have his/ her right hand amputated for the first offence whereas the maximum punishment for the accused outside Kelantan is imprisonment.

 

All these will contravene Article 7 of the federal constitution which protects all Malaysians from being tried and/ or convicted twice (or more) for the same offence.

Further, it will contravene Article 8 of the federal constitution which provides for all Malaysians to be treated equally and be afforded equal protections of the law, save for exceptions such as personal laws which are stated above.

Now, if these important provisions of the federal constitution can be ignored by the authorities despite these glaring breaches and contraventions, then how can the federal constitution maintain its status as the supreme law of the land and continue to protect and confer rights upon its citizens?

Non-Muslims not spared

 

Whilst these examples may go on to show that the Kelantan hudud enactment will only affect the Muslims, the whole scenario will change in the event the victims of the aforementioned crimes are non-Muslims.

Given that the Kelantan Syariah Criminal Code (II) 1993 does not recognise non-Muslims as witnesses, and Syariah Courts do not have jurisdiction over non-Muslims, how are the non-Muslim victims going to seek justice in the courts of law if they themselves cannot testify before the court?

Wouldn’t this deprive the victims of their fundamental right to seek justice? And the same is also true even for female Muslim victims. This raise another pertinent question - do they not deserve the same protection?

These are some of the issues which may arise if hudud is implemented in any part of this country.

Hence, the implementation of hudud in any part of this country is not just a matter for our Muslim friends but also a matter that will affect us, Muslims and non-Muslims alike, as a nation.

This is why whilst many Malaysians respect the want and need of our Muslim friends to accept, follow and observe what is stated in the Islamic holy text, we are standing up against the implementation of hudud.

We are not challenging or objecting what is stated in the Islamic holy text, nor are we against the religion and precepts of Islam, we are opposed to the inequality and injustice that will arise should it be implemented in this country at this point in time.

 

Therefore, in order to achieve and uphold equality and justice, and in order to prevent our country’s administrative and judicial systems to be chaotic, it is important that we go back to the roots of the federal constitution.

 

The federal constitution is not just an ordinary document or any ordinary law passed by the Parliament.

A working formula

It is an important piece of law after long, meticulous thoughts by our forefathers of the possible problems we may face today, and it has provided the solutions for us to resolve these possible problems, as well as arming us with the necessary protections for this nation to grow and develop.

 

This formula has proven to work where the federal constitution have long held us together, it has allowed us to live together in peace and harmony for the past 58 years, and it has provided us safeguards from all the possible unfairness and injustice.

Given that this formula has worked for the past 58 years, why should we then break this formula and risk the future of this country?

 

As such, our members of Parliament, in particular those from BN who hold the majority of the seats in Parliament, must stand up to uphold and defend the sanctity of our federal constitution.

This important piece of legislation was drafted, adopted and passed by no other than our predecessors in the then-Alliance.

If any of us is to go against it, we will be sinking our very own ship which built this nation and we will be betraying the faith and trust that the people have given to us.

ERIC CHOO is party affairs secretary to the president of MCA.