Attack on increased jurisdiction of Syariah courts unconstitutional and an affront to religious liberty by Azril Md.Amin
Published in The Malay Mail Online. June 1 — The Centre for Human Rights Research and Advocacy (CENTHRA) reads with deep concern the joint statement by the Joint Action Group for Gender Equality (JAG) with regards to the Private Member’s Bill tabled by YB Dato’ Seri Haji Abdul Hadi Awang, Member of Parliament for Marang seeking to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 (Amended 1984) to enable the increase of punishments meted out by the Syariah courts (Increasing powers of Syariah Courts may lead to rights violations, MalaysiaKini, 31 May 2016).
We note that the joint statement contains several factually inaccurate assertions as well as downright false and misleading claims, not to mention baseless accusations regarding the proposed Bill in particular, as well as the administration of criminal justice by the Syariah judiciary in general, which we feel compelled to address as well as redress, if only to put in proper perspective the issues surrounding this debate, considering, to borrow the statement’s own words, the level of debate this has generated in the public sphere.
First of all, the implied claim by JAG that the tabling of the Private Members’ Bill was undemocratic, not transparent and should have been subjected to public consultation is unwarranted and illogical given that in a Westminster-based constitutional system such as ours, such a move is not practical given the time constrains involved. We remind JAG that the Bill is not based on any proposal or legislative programme but a Private Members’ Bill, and duly elected Members of Parliament are free to bring forth Bills before the chamber of the House they were elected to without subjecting the same to any consultation process, especially given that the prerogative of whether such Bills are approved for tabling lies with the Speaker of the House. In the United Kingdom House of Commons, for example, hundreds of Private Members’ Bills are presented for tabling for every session and if all such Bills were to require public consultation prior to their tabling then parliamentary business would never be finished. We believe that the confusion took place because such Private Members’ Bill was the first kind of its nature in the history of our Parliament.
Secondly, with respect to the so-called “Malaysian interpretation” and the absence of guarantees in the way Syariah-sanctioned whippings are administered in other countries, we point out that the Bill is tabled before the Parliament of Malaysia, and if passed would become law in Malaysia. As such, sheer logic alone necessarily entails that the “Malaysian interpretation” would most definitely apply, regardless of the practice in other countries, which has absolutely no bearing on this matter whatsoever. JAG has also failed to adduce any example or evidence where present Syariah laws have been applied in a discriminatory fashion leading to victimization.
Regarding the role of the state in enforcing the precepts of Islam, we again remind JAG that this is sanctioned by no less the Constitution itself, which by virtue of Article 4(1) thereof, is the nation’s highest law. Article 3(1) of the Constitution states that Islam is the religion of the Federation. This is to be read with Schedule 4 of the Constitution containing the oath of the Yang di-Pertuan Agong (YDPA) pursuant to Articles 32 and 37 thereof, which mandates that the YDPA must at all times protect the religion of Islam and uphold the rule of law. This reading is further fortified by the Herald’s Case  8 CLJ 890 which states that Article 3 is no mere declaration, but imposes a “positive obligation” on the Malaysian State to protect, defend and promote Islam and its injunctions by appropriate state action, which necessarily includes conferring already existing Syariah courts with the necessary jurisdiction to carry out the injunctions of Islam.
Lastly, JAG should be chastised for making more baseless claims that increasing punishment places a temporary bandage on open wounds, causes more societal harm in the long run and is not in accordance with the compassionate and merciful nature of Islam. It is trite that any criminal justice system, and not just one based on Islam, is meant to subject perpetrators of crimes to justice, and not just the restorative sort but also of the retributive as well as preventive kind as well. While we concede there are existing weaknesses in administration that may lead to abuse, it is submitted that this may be dealt with effectively by taking into account their presence with a view to rectifying the same, and not by simply doing away altogether with a criminal justice system based on Islam, which is the religion of the majority of the population, and more so one that has existed in this land since ancient times prior to the introduction of the British inspired civil criminal justice.
Indeed doing so would lead to degradation of human rights, and erode in particular the religious liberty of citizens professing the religion of Islam, which is specifically protected by Article 11(1) of the Constitution, and is wholly incompatible with the goal of upholding human rights in Malaysia.
Azril Mohd Amin is a lawyer and Chief Executive of Centre for Human Rights Research and Advocacy (CENTHRA).