In an earlier article , I discussed the nature of federalism in Malaysia, and proposed that we are ‘inadvertently’ growing into a multi-layered federalism which was not originally provided for by the drafters of the constitution. Originally, only a three-layered federalism was envisaged; that of a federal government, state-level administration, and local authority level by-laws for good political governance of this nation-state we call Malaysia.
Therefore and consequentially, together with the drafters of the ‘No-Hudud NGO statement,’ I write to support the proposal for a complete and total review of all provisions of the Malaysia Agreement if hudud is designed and developed for implementation even in just one state of the peninsular through a Private Member’s Bill. Let me explain my reasons.
Differentiated ‘states of federation’
The constitution of Malaysia has at least two definitions of ‘states’ embedded in the current form although the terms ‘states of the federation’ are not clearly defined for the differential purposes of each; i.e. the interpretation and definition of the similar constitutional principles.
For one example, in first instance, as with the 1963 Federation of Malaysia, we have the two Borneo states and peninsular Malaya, defined as ‘states of the federation.’ In other instances, like with special provisions of Article 153 or for the preservation of Malay culture, especially with ethnicity and religion definitions, it refers only to the nine states with ‘Rajas,’ and with some apologetic provisions, to the Straits Settlements of Malacca and Penang.
But these were never intended to apply to either of the Borneo states. The 1963 agreement made these very clear and somewhat absolute.
I have not even highlighted the various and particular forms of Muslim practices of Islamic personal and family law which may have their cultural nuances and interpretations, like for example, in the matriarchal system of the Negri Sembilan Malays of Minangkabau origin.
Furthermore, we have even more curious ways in which Islamic personal and family law (all in the name of Islamic values) is defined within public spaces by local authorities. For example, in Kelantan, with some restaurants, hair salons, and supermarkets, there is ‘public space enforcement’ of separation of men and women.
Then we have the now infamous case wherein a Chinese couple was arrested and charged with ‘close proximity,’ as per the Islamic syariah values and interpretation.
Therefore my question is where and how will arbitrary and varied ‘enforcement of Islamic personal and family values’ affect our multi-layered federalism? Where will all this stop in terms of the abuse of interpretive privileges of ‘only those in authority?’
Was this not what the inspector-general of police (IGP) did ‘in not favouring the prosecution of the perpetrator father for the abduction ’of his son?’ That was after the Civil High Court gave explicit custody to the mother of both children. Does it not make a clear enough case about possible confusion at such varying degrees of interpretive law enforcement by authorities; when the chief police officer of the federation is also equally confused?
Is public space Islamic?
I have variously explored ‘whether the air we breathe in Malaysia is Islamic air?’ It is my rhetorical way of asking that question for us to ponder: did God then make a mistake when he made global air colourless.
The problem I have with such wilful but careless proposals for hudud implementation, as with any other by-laws, are that they are open to similar interpretive bias and there is too much room for false, or wrongful, and illegal interpretation.
Therefore, can our public spaces be painted either green or any other colour simply by the whims and fancies of the all local governance officials? Are we not a country of laws?
Non-meticulous planning for hudud under ‘syariah values’
First we had ‘body-snatching’ of converts, and now we have ‘child-snatching’; both these were done in the name of religion and in the name of God. These obviously relate to mis-administration of faith and values in our society.
Now, there is even a debate whether medical practitioners can also become limb executioners. One group argues that this is only a matter of personal preference and voluntary choice in the fulfilment of hudud. Really, since when did this happen within our ethics of professionalism? Why is everyone also equally confused now?
The Malaysian Medical Association (MMA) has categorically said that any medical practitioners who collaborate in this violence and inhumanity explicitly abuses their Hippocratic Oath and denies the very essence of the medical service as mercy and help providers. They are really called to help relieve pain and suffering, not to collude and collaborate with execution of ‘illegally interpreted religious criminal punishment.’
What is very clear to those who understand the federal constitution is that there are no such criminal law punishments or provisions, whether in the name of religion or even in the name of the sultans.
Moreover there are no legal provisions for the police or the prison authorities to undertake these so-called criminal punishments. For that matter, for now, these are not even considered ‘criminal punishments’! All criminal laws are federal laws.
The only way forward
The only way that an Islamic criminal law system can be introduced in Malaysia is vide a constitutional amendment, which would require, not just a two-thirds majority, but also the concurrence of the separate ‘Rajas’ of the nine Malay states.
Sabah and Sarawak also must agree. If and when these are agreed to by all, then the enforcement would encompass the royalty and all others (including non-Muslims) because we are all citizens of the federation. There are no two classes of citizenship currently.
If we are really serious, and here I include all political parties of the federation, then let us do it willingly and consciously with the full agreement of all legal and qualified Malaysians. The agreement to only do it for 90 percent Muslims in Kelantan is a false and misleading argument. It has to be for all or none, as we are all citizens of the same federation.
If we are not, then those who do not want to be so should leave our federation and join the sultanate of Brunei as they are already on this journey. One cannot have one’s cake and also eat it.
But to reduce the entire meaning of our federation by the back door as we have done through the amendment of Article 121 (1A) is misleading, mischievous and done in bad faith. I rest my case.
