Wednesday, 18 March 2015

Abusing the Private Member’s Bill – Chan Foong Hin

This is an open letter to Parliament Speaker Tan Sri Pandikar Amin.

The Shariah Criminal Code Enactment II 1993 amendments tabling by PAS-led Kelantan state government in the state assembly sitting today in Kota Baru, symbolises a no U-turn as far as the hudud debate is concerned. It marks the very first step towards implementation of the theocratic law in Kelantan.

No one can predict what would happen to Malaysia in future, if the next step – Private Member’s Bill is tabled and then passed in the Parliament, allowing Kelantan to implement its hudud law.

It is wrong for PAS to justify their move by saying that “the situation in Kelantan is so unique that even Umno is supporting these amendments” (Shah Alam MP Khalid Samad)  and “please respect the democratic proses in Kelantan” (PAS information chief Datuk Mahfuz Omar).

It is not about uniqueness of Kelantan and respecting the people’s will. I respect every right and will of Kelantan state to implement hudud there. But it can’t be done in the expense of equal partnership spirit of Malaysia Agreement 1963.

As I have argued in my previous article that, hudud is not about a personal religious practice involving Muslims only, but it is a matter of political system involving all Malaysians.

The Ninth Schedule of the Federal Constitution categorically places “Civil and criminal law and procedure and the administration of justice” under Federal List. If any state-level hudud is allowed, it is a blow to Federal Constitution, as it places the particular state (Kelantan) to be more superior then other states as the power on criminal justice under Federal List transferred to State List, without consultation by the other states.

The argument that hudud will be confined to Kelantan is inaccurate as once the amendments are approved and passed, all other states might also proceed to make similar changes.

As the honourable speaker is from Sabah, I think you have no dispute that it is a consensus for every Sabah politician across the political divide that:

1. The rights and freedom of Sabahans must be defended and never compromised, not only in Sabah, but in other parts of Malaysia;

2. The rights and privileges of Sabah as one of the three nations forming Malaysia in 1963 must be defended and not compromised.

We from Sabah never signed up for a theocratic federation – in full or in part – in 1963. Criminal justice is categorically a Federal power under the Ninth Schedule of the Federal Constitution. If it was made clear then Sabahans will face the shariah criminal law in Kelantan by forming Malaysia, I think Sabah would have surely chosen to stay under British or go independent in other ways over the option of Malaysia.

The implementation of Kelantan Shariah Criminal Code 1993 will land those from Sabah staying in or traveling to Kelantan in a legal system that the founding fathers of Sabah did not sign up for in 1963, with the following consequences:

(a) If he or she – regardless of faith – fell prey to thefts, robberies, bodily harms included attempted murder and manslaughter in Kelantan committed by Muslims, their cases will be tried in the shariah court, and not common law court.

(b) Sabah crime victims cannot be the witness in court for their own case if they are non-Muslim, women, underage Muslims or Muslims with questionable religious conducts (Section 41 of the Code).

(c) If Sabahan Muslims are accused of stealing or robbing of anything worth more than 4.45g of gold (about RM 610 at current price), they will be tried in shariah court and may face the punishment of amputation.

(d) All Sabahan Muslims who are convicted of adultery or sodomy in Kelantan may face death penalty by way of stoning [Sections 10, 11(1) and 16].

(e) All Sabahan Muslims who are convicted of drinking in Kelantan may face 40 to 80 lashes [Section 22].

(f) All Sabahan Muslims who are convicted of undermining or opposing the Islamic faith (menjejaskan atau berlawanan dengan aqidah agama Islam) through actions or expression may face death and his/her property may be confiscated.

Any changes to this effect must only happen with the consent of both Sabah and Sarawak. Article 161A of the Federal Constitution stipulates that any constitutional amendment involving division of power between federal and state governments must not only be passed by a two-thirds majority in the Dewan Rakyat, but also requiring the concurrence of the governors of Sabah and Sarawak.

If Sabah were to agree to grant Kelantan additional power in criminal justice, we from Sabah would like more power to Sabah including citizenship, education, medical, policing and military, trade and commerce, etc.

The collusion by the Federal Government and Kelantan government to make possible of expanding Kelantan's power to cover criminal justice system under Article 76A, which denies the power of both the 57 parliamentarians from Sabah (including Labuan) and Sarawak and the governors of Sabah and Sarawak to have any say, is a constitutional coup against Sabah and Sarawak.

If Kelantan – which unsuccessfully opposed the formation of Malaysia through a constitutional challenge in 1963 –  insists that the state can do anything it likes with the consent of Putrajaya and makes itself higher than other states especially Sabah and Sarawak which are on par with the entire Malaya, it should consider leaving Malaysia.

Instead of Sabah Sarawak Keluar Malaysia, Kelantan Keluar Malaysia will be more apt.

The Parliamentary Speaker has every duty to prevent any private member's bill that is tantamount to nullifying the Malaysia Agreement and tearing Malaysia apart from being tabled. Honourable Speaker, you hold the key to save Federation of Malaysia from tearing apart. Please reject the PAS private member bill to safeguard the aspirations of the people of Sabah and Malaysian interests. – March 18, 2015.



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