It is encouraging to find Malaysians across the race-and-religion divide coming together to call for rational debate on hudud and the related Kelantan Syariah Criminal Code (1993) and affirming that:
– As all Malaysians, Muslims or non-Muslims, Kelantanese or non-Kelantanese, are rightful stakeholders in the enforcement of KSCC, no one should be penalised, threatened or ridiculed for having or expressing any opinion on the matter.
– The success of Islamic banking in winning over the hearts and minds of non-Muslims through rigour and proven benefits, rather than a deceiving assurance of non-Muslim exclusion or a sloppy “trial-and-error” attitude, should be an inspiring example.
– The implementation of KSCC must not be decided on a winner-takes-all manner, such as a simple majority in the Dewan Rakyat, for this will risk tearing the country apart.
– The inclusive spirit of the Federal Constitution and the 1963 Malaysia Agreement, which lay down the secular basis of the Federation of Malaysia, must be upheld.
First, the provisions of the Kelantan Syariah Criminal Code is so evidently ultra vires the Federal Constitution that there is a prima facie case to reject it out of hand. It is agreed that the call for rational dialogue should not be restricted to debating whether one should support or oppose hudud. It is a call to all Malaysians to respect the provision related to the status of Islam and other religions in the Federal Constitution which is premised on a secular framework. Put concretely, the starting point for dialogue should be the original intent of the Federal Constitution as a secular-state where there is no establishment of religion, or provision for a dominating position for Islam. In this regard hudud or any Islamic law should not be part of our legal system, except in matters of personal law specifically enumerated in the Constitution. See related post: Malaysia Social Contract (Part 1): Religion and Equal Citizenship and Historic Documents on the drafting of the Constitution.
Second, the rational debate should publicly call into question not only the overt hudud agenda of the Kelantan government, but also the arguably, clandestine introduction of syariah compliant provisions in various State enactments in UMNO dominated State Legislative Assemblies (Dewan Undangan Negeri), and imposition of syariah compliant policies in the government departments affecting non-Muslims. Hudud naturally elicits strong and vocal opposition from all reasonable Malaysians as its implementation is an obvious and undeniable act of injustice against non-Muslims. In contrast, the introduction of syariah compliant laws and department policies are subtly and incrementally implemented so that non-Muslims remain unaware of the gradual erosion of their fundamental liberties.
In either case, the inclusive spirit and universal justice enshrined in the Federal Constitution would be shattered by the fatal blow of hudud, or gradually extinguished by the covertly introduced syariah compliant laws of the State Legislative Assemblies and government department policies.
With regard to the controversial proposal to enforce Kelantan Syariah Criminal Code II (1993) 2015 (KSCC), we, the 93 undersigned organisations, call for inclusive, open and rational debates and deliberation involving all stakeholders.
Specifically, we hold the following views:
Not simple ‘for or against’
The KSCC has far reaching implications, way beyond the hudud (fixed) punishments for theft, robbery, adultery, sodomy, false accusation of adultery/sodomy, intoxication and heresy.
It also covers the qisas (retaliatory) punishments for homicide and bodily injury, which are currently governed by the Penal Code, and the ta’zir (discretionary) punishments when the hudud and qisas punishments cannot be imposed, for example because of failure to meet requirements of evidence.
Currently, these four categories of offences – theft, robbery, homicide and bodily injury – are governed by the Penal Code, with the evidence requirement laid down by the Criminal Procedure Code (CPC).
The KSCC must therefore be read and construed together with the Kelantan Syariah Court Evidence Enactment 2002 (KSCEE) which, by way of sub-section 39(2) of KSCC, imposes its complementary evidence requirements for theft, robbery, homicide and bodily injury.
The misleading calls to support or oppose the hudud punishments therefore dangerously divert the public attention to the full ramifications of the KSCC. Such simplistic positioning must be replaced with honest, comprehensive and detailed scrutiny of the KSCC and KSCEE.
Non-Muslims involved if victim
While non-Muslims are excluded from the KSCC as the accused party, such exclusion does not apply to them as the victims. Non-Muslims are therefore also legitimate stakeholders. As stipulated in Section 2 of the KSCC, all cases of theft, robbery, homicide and bodily injury involving Muslims as the accused party will be tried under the law. Among the implications are:
a. Non-Muslims, women, underaged persons and adult male Muslims who are not “just” (namely, who have not abided religious requirements) will not have full testifying competence in the Syariah Court. (Section 41 of the Code, and Sections 83 and 86 of KSCEE); and
b. When the prosecution cannot produce testimonies by two “just” adult male Muslims in murder cases, the court can only impose ta’zir punishments which exclude death penalty, resulting in great inequality before the law. (Sections 29, 39 of the KSCC).
East Malaysians didn’t sign up for syariah
The law will apply to not only Kelantaneses but anyone residing in or travelling to Kelantan. Non-Kelantanese are therefore also legitimate stakeholders.
This is especially true for Sabahans and Sarawakians, whose founding fathers and mothers did not sign up for a Federation of Malaysia with syariah criminal justice in any of its parts. Among the implications are:
a. All Muslims, including Sabahans and Sarawakians who are accused of stealing or robbing, will be tried in a syariah court and if the goods involved reach the value of 4.45 grammes of gold (about RM620 at current price), they may face the punishment of amputation. (Sections 6-11 of the KSCC);
b. All Muslims, including Sabahans and Sarawakians who are convicted of adultery or sodomy in Kelantan, may face the death penalty by way of stoning. (Sections 12-15 of the KSCC);
c. All Muslims, including Sabahans and Sarawakians who are convicted of drinking alcohol in Kelantan, may face 40 to 80 lashes. (Section 22 of the KSCC); and
d. All Muslims, including Sabahans and Sarawakians who are convicted of heresy (irtidad or riddah), may face the death penalty and forfeiture of all properties. (Section 23 of the KSCC).
All have right to discuss hudud
As all Malaysians, Muslims or non-Muslims, Kelantanese or non-Kelantanese, are rightful stakeholders in the enforcement of KSCC, no one should be penalised, threatened or ridiculed for having or expressing any opinion on the matter.
We solemnly condemn any act or expression of hatred aiming to silence dissidents. All stakeholders – whether supporting or opposing the KSCC – must strive for inclusive, open and rational debates and dialogues to respect differences, foster understanding and seek consensus.
It must not be a crime for any Malaysian to disagree with any other.
While Malaysians may hold vastly opposing views on the specific mechanisms (wasail) of syariah law in criminal justice, we can and should strive for convergence in attaining the universal purpose (maqasid) of syariah law and justice.
Instead of battling pragmatic difficulties, the advocates of syariah law should consider the alternative of concentrating their efforts on introducing ideas compatible for our plural society from the rich syariah tradition that may improve quality of justice and at the same time, do not cause any discrimination to or unnecessary segregation of citizens on the grounds of religion, ethnicity, gender and lifestyle.
Might not right
The success of Islamic banking in winning over the hearts and minds of non-Muslims through rigour and proven benefits, rather than a deceiving assurance of non-Muslim exclusion or a sloppy “trial-and-error” attitude, should be an inspiring example.
The implementation of KSCC must not be decided on a winner-takes-all manner, such as a simple majority in the Dewan Rakyat, for this will risk tearing the country apart.
The inclusive spirit of the Federal Constitution and the 1963 Malaysia Agreement, which lay down the secular basis of the Federation of Malaysia, must be upheld.
The joint statement is endorsed by the following organisations:
1. All Women’s Action Society (AWAM)
2. Anak Muda Harapan Malaysia (AMHM)
3. Angkatan Warga Aman Malaysia (WargaAMAN)
4. Archdiocesan Human Development Commission (AHDC) Kota Kinabalu, Sabah
5. Baramkini (Sarawak)
6. Belia Saint Aloysius Limbanak, Sabah
7. Borneo’s Plight in Malaysia Foundation (BoPiM)
8. Borneo Resources Institute Malaysia, Sarawak (BRIMAS) ,
9. Consumer Association And Protection Sabah (CAPS)
10. Cornerstone Resources Berhad, Sabah
11. Damn the Dams, Sarawak
13. Federation of Malaysian Indian Organisation (PRIMA)
14. Friends of Kota Damansara
15. Gerakan Anak Sarawak (GASAK)
16. Green Friends Sabah
17. Group of Concerned Citizens
18. Institute for Development of Alternative Living (IDEAL)
19. Islamic Renaissance Front (IRF)
20. Japan Graduates Association, Malaysia (JAGAM)
21. Jaringan Orang Asal SeMalaysia (JOAS)
22. Jaringan Tanah Hak Adat Bangsa Asal Sarawak (TAHABAS)
23. Jawatankuasa Bertindak Kuala Lumpur Tak Nak Insinerator
24. JIHAD for JUSTICE
25. Johor persahabatan Semparuthi
26. Kill The Bill
27. Komiti Belia Perlaksana Child of Jesus, Sabah
28. Komiti Belia Perlaksana Minintod, Sabah
29. Kumpulan Aktivis Mahasiswa Independen (KAMI)
30. Land, Empowerment, Animal, People (LEAP), Sabah
31. LLG Cultural Development Centre
32. Lingkarn Islam Traditional (LIT)
33. Maljis Perundingan Malaysian Agama Buddha, Kristian, Hindu, Sikh dan Tao (MCCBCHST)
34. Malaysia Christian Youth Association (MCYA)
35. Malaysia Trade Union Congress (MTUC), Sabah Division,
36. Malaysian Indians Progressive Association (MIPAS)
37. Malaysian Indians Transformation Action Team (MITRA)
38. Malaysian Students for Liverty
39. Malaysian Youth Care Association (PRIHATIN)
40. Monitoring Sustainable Globalisation (MSN)
41. National Indian Rights Action Team (NIAT)
42. Negeri Sembilan Chinese Assembly Hall (NSCAH)
43. Northern Green Youths, Sarawak
44. Oriental Hearts and Mind Study Institute (OHMSI)
45. Sabah Partners in Community Organising (Pacos Trust)
46. Peoples Green Coalition, Sarawak
47. People Welfare and Rights Organisation (POWER)
48. Penang Chinese Town Hall (PCTH)
49. Perak Women for Women Society (PWW)
50. Persatuan Alumni PBTUSM Kuala Lumpur dan Selangor
51. Persatuan Bekas Siswazah Univesiti dan Kolej di China, Malaysia (LiuHua)
52. Persatuan Kesedaran Komuniti Selangor (EMPOWER)
53. Persatuan Komuniti Prihatin Selangor Dan Kuala Lumpur (PRIHATIN)
54. Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS)
55. Persatuan Promosi Hak Asasi Manusia (PROHAM)
56. Persatuan Rapat Malaysia (RAPAT)
57. Persatuan Sahabat Wanita, Selangor (PSWS)
58. Projek Dialog (PD)
59. Pusat Komunikasi Masyarakt (KOMAS)
60. Pusat Sumber Adat dan Mediasi Kaum Anak Negeri Sabah (PUSAKA)
61. Rise. Of. Sarawak. Efforts (ROSE)
62. Sabah Banking Employees’ Union (SBEU)
63. Sabah Environmental Protection Association (SEPA)
64. Sabah Women’s Action Resource Group (SAWO)
65. Saccess Sarawak
66. Sahabat Rakyat
67. SALT Movement SALT
68. Sarawak Dayak Indigenous Association (SADIA)
69. Sarawak Women for Women Society (SWWS)
70. SAVE Rivers
71. Saya Anak Bangsa Malaysia (SABM)
72. Saya Anak Bangsa Malaysia in Australia
73. Selangor and Kuala Lumpur Hokkien Association Youth Section
74. Sembang-Sembang Forum, Sarawak
75. Sisters in Islam (SIS)
76. Solidarity for Civil Rights in China (SCRC)
77. Suara Rakyat Malaysia (SUARAM)
78. St. Marcellinus Church, Minintod, Sabah
79. St. Theresa Child of Jesus Church, Sabah
80. Tamil Foundation (TF)
81. Tamilar Action Force (TAF)
82. Tenaganita Women’s Force
83. Teoh Beng Hock Trust for Democracy
84. The Kuala Lumpur and Selangor Chinese Assembly Hall
85. Tim Pelayanan Belia Paroki Penampang, Sabah (TPBP)
86. Tindak Malaysia
87. United Chinese School Alumni Associations of Malaysia (UCSAAM)
88. We Are Malaysians
89. We Are One Race- Human Race-
90. Women’s Aid Organisation (WAO)
91. Women’s Centre for Change (WCC) Penang
92. Women Development Organisation of Malaysia
93. Writer Alliance for Media Independence (WAMI)