Hornbill Unleashed

March 24, 2017

The day after Act 355 amended

Filed under: Politics — Hornbill Unleashed @ 8:01 AM

The consequences are frighteningly horrendous with a sure descend into theocracy, first for the Muslims, but quite probably eventually for non-Muslims too. Think Iran for instance and how a takeover of the rule of law by religious authorities radically changed the country, making it a fundamentalist Islamic state virtually overnight.

It will be the first major step towards surrendering the rule of law to religious authorities who neither have knowledge of secular law nor the necessary equanimity to be fair regarding such matters.

It will lead down a slippery slope because power so injudiciously surrendered to unelected representatives will be difficult to recover in future. And it raises a wide range of issues whose outcomes will be difficult to predict and increase the level of uncertainty in Malaysia even further.

But first let’s take a quick look at what the fuss is all about. The current Act 355 Syariah Courts (Criminal Jurisdiction) Act 1965, amended in 1988, provides that:

“The Syariah Courts duly constituted under any law in a State and invested with jurisdiction over persons professing the religion of Islam and in respect of any of the matters enumerated in List II of the State List of the Ninth Schedule to the Federal Constitution are hereby conferred jurisdiction in respect of offences against precepts of the religion of Islam by persons professing that religion which may be prescribed under any written law: Provided that such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding five thousand ringgit or with whipping exceeding six strokes or with any combination thereof.”

It is the italicised portion which is under question. Initially PAS proposed the removal of the limits completely, which would give Muslim state authorities carte blanche to impose any punishment for any religious offence. This would effectively have permitted PAS to implement hudud in Kelantan under laws it had enacted earlier but whose implementation was stopped by Act 355 which limits the punishment for religious offences.

But PAS later amended the bill to 30 years’ jail (10 times the current maximum jail term), fine of up to RM100,000 (20 times) and 100 strokes of the rotan (16 times), which is still a huge increase from the existing legislation.

What was surprising was that the bill was fast-tracked despite it being an opposition bill, an unprecedented occurrence, and it may even be tabled in Parliament this session. Now the government maintains that it will table the bill itself, leading to confusion and apprehension by non-Umno BN component parties in the peninsula and Sabah and Sarawak.

Sarawak leaders have already expressed their concern that the amendment to Act 355 will result in differential punishment for the same offences between Muslims and non-Muslims which goes against the constitutional principle of equal punishment for the same offence.

For BN, cooperating with PAS on this bill enables them to move closer to the Islamist party and recover some of the support lost over 1MDB and other related issues which have really eroded Malay support, according to opinion polls.

But what is PAS’ intentions? Its president Abdul Hadi Awang is on record to say that it will be a test to see whether Muslim MPs are willing to support the introduction of hudud in Kelantan. The ultimate aim is clearly introduction of hudud, eventually for everyone.

Here are 10 things we can expect if Act 355 is amended.

1. A sure descend towards theocracy. Syariah law has been around for a long time. But its implementation has gathered strength in more recent years. Perceived Islamic practices such as wearing the tudung and conservatism in dressing are much more prevalent now than what they were over 40 years ago. Sharply increasing penalties for religious offences represents a huge concession towards theocracy.

2. Increased power to Islamic authorities. Islamic authorities are free to increase penalties to astronomical levels for religious offences. Muslims will be more susceptible to extreme religious interpretations. Muslims will be more at the mercy of religious authorities who can increase penalties for personal/family/religious offences tremendously.

3. Muslims have less room for personal interpretation of religious tenets. Because of likely higher penalties for religious offences, Muslims are less likely to interpret the religion to their own needs and thinking, reducing personal choice and freedom.

4. A tendency towards decreasing personal choice for all. If such personal choice is decreased for the majority of the population, it is inevitable that there will be some amount of decrease in choice for others too. Witness, for example, PAS’ efforts to stop what it sees as non-Islamic practices by using municipal laws.

5. Opens divisions among Muslims themselves. Not all Muslims are for the amendments to Act 355. The G25 group of prominent persons, predominantly Muslim, has opposed the amendments openly. There are likely to be many other Malay moderates who are against the amendments.

6. Raises non-Muslim suspicion. Non-Muslims are understandably apprehensive about how such amended laws which provide severe punishment for religious offences will affect their own practices and are not convinced by arguments that this is a Muslim issue concerning Muslims only. To them assimilation of Islamic practices into public life, for instance in the civil service and schools, is worrisome.

7. Increases widening rift between Muslims and non-Muslims. The proposed changes will increase the already widening rift between Muslims and non-Muslims in Malaysia and put needless focus on religion, hardening positions on both sides.

8. Widens rifts between BN component parties. Differences between Umno and its non-Muslim coalition partners will be heightened. Even Muslim members of opposition parties may vote for the amendments, complicating issues further.

9. Widens differences between the peninsula and Sabah and Sarawak. Sabah and Sarawak are much more tolerant of religious differences and it is not unknown there for family members to belong to different faiths in addition to Islam. Political parties there, besides Umno in Sabah, are likely to oppose the amendments.

10. Raises a plethora of unpredictable outcomes for the nation. The permutations and combinations likely are quite unpredictable and likely to be very far-reaching. Eventually, the outcomes can be rather drastic for Malaysia which has in the past been rightly proud of its brand of moderate and tolerant Islam until recently.

Political expediency

It is highly irresponsible for the government to support such an amendment now which will add to the considerable uncertainty already surrounding the country over 1MDB, kleptocracy and corruption but political expediency is no doubt at the heart of this.

This country was born out of a secular constitution which guarantees freedom of religion and choice, rooted in secular laws which apply to everyone equally except for some related to Islamic family law and the practice of Islam affecting those who profess to be Muslims.

Considering that interpretations of any religion, including Islam, are rather subjective, it is imperative that the country moves towards allowing more personal choice and allowing people to practice their religion (or not practice it) according to the dictates of their own conscience and their own interpretations.

Anything that puts greater power into the hands of religious authorities, who are after all mere mortals like the rest of us, and increases their influence over how we should behave and even force ourselves to behave according to their whims and dictates should be stoutly resisted.

It would seem that the amendment to Act 355 is not a constitutional amendment (although its constitutionality can be challenged) and therefore only requires a simple majority in Parliament to be passed.

If the amendment is to be defeated, it would probably require near unanimous votes against by the opposition – it is by no means certain considering the number of Muslim opposition MPs and that their “Muslimness” is being tested. This has to be combined with opposing votes by BN component parties such as MCA, MIC and Gerakan and some of the Sabah and Sarawakian parties.

If the vote, which could be taken as soon as the current Parliament session, is passed, it would solidify the alliance between PAS and Umno, altering the political landscape in the country completely as personal rights take a huge body blow and alignments change. If it is not, then Umno and PAS will accuse the opposition of being un-Islamic.

It may be a win-win situation for Umno and PAS leaders either way but ultimately everyone else will be losers if the amendments become law.


P GUNASEGARAM believes that more sins are committed in God’s name than anyone else’s.
Source : @ Malaysiakini


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