Renegotiate Federal Constitution since the Federal Government abandons secularism

We – Malaysians living in or hailing from Sarawak and Sabah and Labuan (Borneo States and Territory) - hereby call for a thorough renegotiation of the Federal Constitution, or  the formulation of a new one.

This is in response to the Minister of the Prime Minister’s Department Azalina Othman Said and Deputy Work Minister Rosnah Abdul Rashid Shirlin backing Marang MP Hadi Awang’s private member’s bill ( hereafter “the Hadi Bill" ) to amend the Syariah Court (Criminal Jurisdiction) Act 1965 on May 26, 2016, which indicated a historic shift of the Federal Government’s position on the secular nature of the Federation of Malaysia.

We solemnly hold the following positions:

1. In forming Malaysia with Malaya and Singapore in 1963, Sabah and Sarawak signed up for a liberal and secular federation, not a theocratic one where any religious criminal justice system may be in force in any part of the Federation. Religious freedom was amongst the top demands of Sabah and Sarawak in the negotiations on the Malaysia Project, which produced the Inter-Governmental Committee Report and eventually the Malaysia Agreement 1963. Sabah and Sarawak would have stayed as British colonies if Syariah criminal law was an item in the negotiation.

2. The secular nature of the Federation of Malaysia is safeguarded by Item 1, State List of the Ninth Schedule of the Federal Constitution which applies federation-wide and limits;

i.  the state power on Islamic law  to “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List”
ii.  the power of Syariah Court by explicitly stating that “[it] shall have no jurisdiction in respect of the offences except in so far as conferred by the federal law”.

3. The 3-5-6 cap – “imprisonment up to 3 years, fine up to RM 5,000 and whipping up to 6 strokes” -- currently imposed by the Syariah Court (Criminal Jurisdiction) Act 1965 on the punishment meted out by Syariah Court is a commensurate commitment to the secular nature of the Federation of Malaysia.

4. By lifting the 3-5-6 cap – excluding death punishment -- on punishments meted out by the Syariah Court, the Hadi Bill intends to alter the secular nature of the Federation of Malaysia. If the Hadi Bill is passed, parts of Kelantan’s Syariah Criminal Code II (1993) 2015 [KSCC] and Terengganu’s Syariah Criminal Offences (Hudud and Qisas) Enactment 2002 [TSCOHQE], can be in force. Syariah laws in other states may also be revised to increase the punishments.

5. With the partial operation of KSCC (Kelantan) and TSCOHQE (Terengganu), Sabahan and Sarawakian Muslims will be subject to these consequences, which our forefathers did not sign up to in 1963:

a. Whipping of 100 lashes and imprisonment for 1 year for unmarried persons convicted of fornication (zina) in Kelantan [Sections 13] or Terengganu [Section 13].

b.  Whipping of 80 lashes for persons convicted of unsubstantiated accusation of fornication or sodomy (qazaf) in Kelantan [Sections 18] or Terengganu [Section 8].

c. Whipping of 40-80 lashes for persons convicted of drinking in Kelantan [Section 22] or Terengganu [Section 5]

d. For persons convicted of heresy [irtidad or riddah]:

i. In Kelantan [Section 23], Imprisonment of unspecific period in the hope of their repentance and forfeiture of all of their properties when there is no hope of their repentance. [Upon repentance, forfeited properties will be returned].

ii. In Terengganu [Section 26], forfeiture of all of their properties. [Upon repentance, forfeited properties will be returned but an imprisonment not more than 5 years must be imposed.]

6. The move by Minister Azalina and Deputy Minister Rosnah to fast-track the Hadi Bill – otherwise would never get to be debated as it was placed as item 15 at the bottom of the legislative agenda -- suggests that the Federal Government’s position on the agenda of Syariah rule expansion has changed from passive avoidance to active embracement.  Prime Minister Najib’s defending of the fast tracking shows that the political will comes from the PM himself.

7. Minister Azalina’s further comment that matters concerning Islam can only be discussed by Muslims is not acceptable for Sabah and Sarawak. Unlike in Malaya, religious or ethnic differences do not stop us from standing together to defend our rights. All Sabahans and All Sarawakians are entitled to speak up and be heard on all matters concerning all Malaysians.

8. Since the Najib Administration is now formally abandoning secularism, the original moral basis of the Federation has been called into question. The federal-state division of power enshrined in the Ninth Schedule is a package deal and cannot be altered unilaterally to suit the call of one or two state of Malaya, while Sabah and Sarawak as the equal partners of the entire Malaya are not consulted.

9. Therefore, a constitutional assembly with elected representatives of all constituent states and territories should be convened to renegotiate the Federal Constitution or formulate a new one, to give all states and territories the commensurate and necessary autonomy to pursue their different aspirations and preferred lifestyles.

10. Until the constitutional renegotiation or formulation is completed, all parliamentarians should defend the spirit of the  Malaysia Agreement 1963 and vote down the Hadi Bill should it reappear in the next Parliamentary session.