The inherent contradiction between the Federal Constitution and Syariah expansionism …..

This by good and necessary consequence implies that “private sins” are no different than “public sins” and are equal in status

Jason Loh

The proposed Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016 by Tuan Guru Hadi Awang – in reference to the Syariah Court (Criminal Jurisdiction) Act 1965 (Act 355) – to enlarge the scope and extent of the jurisdiction and authority of the Syariah legal system (which comes under the administration of the state government) creates the pre-conditions for the eventual implementation of hudud which has no place in a society such as Malaysia, even if its introduction is limited to Kelantan (and the northern states assuming PAS wins power and has its way in terms of the passage and amendments of the relevant legislation and articles and schedules of the Federal Constitution, respectively).

A legal system – analogous to a market system – never exists in isolation and insulation from the broader society in which it is inevitably embedded. To put it simply, the proposer of the said Bill is the advocate of hudud par excellence and heads a party that wishes to implement hudud in Malaysia.

Our beloved PM and the Government therefore should not seek to “partition off” the issue of amending Act 355 (with its “3-6-5” safeguards) from the wider responsibility of preserving and protecting the welfare of the rakyat. In other words, this particular issue should be treated no differently than an economic or socio-economic one – and ought to be managed under the 1Malaysia philosophy.

Furthermore, even if hudud is implemented at the state level only, it is not just incompatible with the intention or purpose, spirit and letter of the Federal Constitution but that the implementation of hudud within the context-specific framework of the Federal Constitution is by itself inherently unsustainable in the long-term which means that either one has to give way. Either there must be syariah supremacy or the Federal Constitution must remain the paramount and pre-eminent law of the land. In other words, both are mutually exclusive. It is an either/or situation and therefore there can never be a synthesis at a higher level that resolves the inherent tension between syariah expansionism and supremacy of the Federal Constitution.

That is to say, we are no longer confining ourselves to just discoursing about the legal and constitutional aspects of the implementation of hudud, but going beyond it and into the realm of the practical implications of such proposed arrangements.

By analogy, we can appeal to the current situation of the European Union (EU) – founded as it is upon such as high, noble and universal ideals of solidarity, peace, and justice. Notwithstanding, the EU actually also represents a fusion and synthesis between two contradictory principles, namely that of “statism” (the pro-active, enlarged role of the State in society as embodied in the foundational principle of “ever closer union”) and “marketism” (the market as autonomous, i.e. independent from State intervention as embodied in the policy of the freedom of movement of people, capital, good and services). Though originally hailed as the most successful regional integration that brought the countries of Western Europe together in an era of unprecedented era of continuous peace and prosperity, the EU as it is now called is on the brink of breaking up – with what could be a looming Brexit and the debt crisis still engulfing the PIGS.

The underlying cause is that the institutional arrangements have yet to catch up with the momentum of integration. That is, whilst monetary union in the form of the euro has strengthened regional integration, the debt crisis has exposed the flaws and shortcomings in its design. In other words, monetary union was not accompanied by a fiscal and banking union. These latter two arrangements are necessary to ensure a fiscal transfer from the core to the periphery so that public debt can be pooled and redistributed and the effects of private debt can be mitigated (famously posed by the Target2 question), respectively.

Likewise, to insert hudud into the Federal Constitution – as what Hadi’s Bill proposes to (incipiently and implicitly and seminally) is to create conditions for the ultimate “break-up” of the latter and by inclusion and extension, character of the Federation of Malaysia. For to attempt to expand the Syariah legal system beyond its current limited form is tantamount to placing it on equal footing with the civil system, and ultimately and eventually with the Federal Constitution – which of course it has to be repeated is unsustainable as either one has to give way.

This is done first of all by blurring the distinction in the status between punishable sins and public offences – with the elevation of the seriousness of the former as represented by the unlimited discretion to mete a matching or corresponding sentence. This by good and necessary consequence implies that “private sins” are no different than “public sins” and are equal in status – whereas natural law and reason informs that there are indeed degrees or gradations in wrong-doing (or “sins) and therefore by inclusion and extension the dessert.

It has to be stated clearly, therefore, that the dual-track legal system does not and never did presuppose and imply equality of status between the civil and Syariah system, notwithstanding Article 121A of the Federal Constitution which sought to dilute to an extent (it must be critically understood here) and therefore not entirely the constitutional supremacy of the federal courts – in effect committing a reverse “neo-centralisation” analogous to federal-state power relations. This is true in cases of unilateral conversions and other such matters affecting non-Muslims. What Article 121A did was to provide reassurances that the jurisdiction of the Syariah courts will never be interfered or tampered with in any way by the federal courts (the intra vires perspective).

At heart therefore in Hadi’s Bill, I believe, is whether the Syariah legal system is equal to the civil system. The answer is in the negative and ought to be answered in the negative. Syariah expansionism has no place in Malaysia and is unsustainable as it will or must lead to Syariah supremacy.

In conclusion, the protest and opposition by the non-UMNO component parties – against Hadi’s Bill – led by Dato’ Seri Liow Tiong Lai is a most apt and timely one. The concern and motivation is not just for the sake of the non-Muslims in Malaysia but also our fellow Malaysians who are Muslims. This is not an issue of Muslims versus non-Muslims but a vision of Malaysia founded upon the Federal Constitution and social contract versus a Malaysia that can only be set on a conveyor belt or unstoppable mode of more and more Islamisation.