IMPLICATIONS OF HADI AWANG'S RUU355

KEVIN KOO SENG KIATLLB (Hons) IIUM, DSLP (IIUM), LLM (Malaya)

10th March 2017Wisma MCA

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Some recent events

● 19 March 2015, Star: “Kelantan's hudud bill amendments passed.”● “Ahmad, who is also the PAS deputy spiritual leader,

assured non-Muslims that hudud laws would not apply to them and only to Muslims in the state.”

● 26 May 2016, NST: “Hudud law will only apply to Muslims in Kelantan, says Zahid.”● “The bill for Pas to implement hudud law is only

applicable to Muslims in Kelantan.”

Menteri Besar Datuk Ahmad Yaakob

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Some recent events

● 16 June 2016, TODAY Online: “Kelantan minister says hudud Bill would apply to all Malaysian states”● “The private member’s Bill is to elevate the

jurisdiction of the Syariah courts in the whole of Malaysia. It is to control the Syariah courts, not just for Kelantan but for the whole country, that is the plan,” he (Mohd Amar) told Malay Mail Online.

Deputy Menteri Besar Mohd Amar Nik Abdullah

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Hadi's Bill v. 1.0

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Hadi's Bill v.2.0

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Paves way for full blownhudud, ta'zir and qisas.

● Hadi's bill v.1.0 = All punishments allowed under Syariah except death.

● Hadi's bill v.2.0 = 30 years, RM100,000, and 100 lashes.

● Hadi's bill v.2.0 is merely a “compromise” to reach the halfway mark; does not mark the end of the quest to implement Hadi's bill v.1.0.

● One step back = Two Steps Forward?● Why use the word “melebihi”?

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Outdoing the previous generation

● Normal for each succeeding generation to want to “out-do” and “out-shine” preceding generation.

● However using Act 355 as a benchmark of achievement may start a vicious cycle of ever-increasingly strict and harsh laws.

● There are other things that should be our focus, e.g. the maximum terms of Prime Minister in his office; the automatic declassification of official secrets; etc.

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Malaysia = Unique Country.

● Malaysia is: Multi-racial, multi-religious, multi-cultural.● Founding fathers did not intend for harsh Islamic

criminal laws to be implemented.● The Sultans unanimous view to the RUU 355

amendments is important as they are the head of Islam in their respective states.

● Not correct to assume that a simple majority can carry the amendment through without Sultans' agreement.

● Sultans are also rulers of non-Muslims and have a duty to protect the non-Muslims.

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Rukunegara

● Our Rukunegara says “Kepercayaan Kepada Tuhan” (Faith in God) but does not demand that God's laws be implemented.

● The word “Tuhan” does not indicate any God(s) in particular

● All faiths are equally respected● There are five main aims in Rukunegara, none

demand that Act 355 be amended.● Rukunegara should be made the preamble

(muqadimmah) of the Federal Constitution just like Pancasila in Indonesia.

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Our neighbours● BRUNEI:Small country, but enacted hudud. Applies to

Muslims and non-Muslims (including tourists). ● After hudud law enacted, Christians cannot celebrate

Christmas openly, lion dances restricted, no firecrackers allowed during CNY, businesses must close during Friday prayers, restaurants must close during Ramadan fasting, non-Muslims cannot eat openly during fasting time.

● INDONESIA : Most populous Muslim country in the world. Secular. Guided by Pancasila.

● ACHEH: Province in Indonesia enacted hudud. 60 year old non-Muslim woman whipped 30 times in 2016 for selling alcohol.

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Danger of overzealous authorities

● BORDERS case● Bible Society (Alkitab) case● JAIS / DUMC case● In 2008, IKIM suggested that non-Muslim and Muslim

can be charged for khalwat.● In 2012, a non-Muslim was convicted of khalwat. The

case was dropped in 2014.● All these are before the amendment of Act 355. Will we

see more serious cases if the amendment is allowed?

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“Halimah” from Bandung convicted of khalwat in 2012.(The Star)

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18,000 teenage pregnancies reported in 2015.

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Amina Lawal case from Zamfara, Nigeria

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Danger of double jeopardy

● Amendment of Act 355 may create double jeopardy, i.e. person being charged twice for same crime.

● Example: If Anwar Ibrahim's sodomy case were to be heard again (after amendment), in which court would it be heard?

● Overlapping provisions exist in Penal Code (sex against nature) as well as Akta Kesalahan Jenayah Syariah (liwat).

● Can Anwar Ibrahim still be charged in the Shariah Court today?

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Danger of “inequality” post-amendment

● If Shariah courts can jail Muslims up to 30 years and civil courts can jail Malaysians up to 20 years only, it creates inequality of courts.

● Will the civil courts be given “enhanced” powers to also jail Malaysians up to 30 years?

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My suggestion:Put it in the Constitution

● Federal Constitution sets maximum limits of punishment for Shariah offences under “federal legislation”.

● Federal Consitution is “federal legislation”. Act is also “federal legislation”.

● However, an “Act” can be amended by simple majority of Parliament.

● Act 355 should be abolished and its provision for maximum penalties inserted into the Federal Constitution. (Replacing the reference to “federal legislation”)

● The penalties of the Shariah Court will be enshrined in the Federal Constitution and its status elevated and protected.2/3 majority required to change it.

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Thank you

We should try to leave behind a beautiful place for our children to live in