Shariah

Malaysian Bar: Supremacy of Federal Constitution and Syariah Court Enactments (2016) June 8, 2016

Malaysian Bar Press Release | Preserve, Respect and Uphold the Supremacy of the Federal Constitution 8 June 2016 The Malaysian Bar is extremely concerned over recent attempts by certain parties to ignore or reject entrenched principles in our supreme law, namely the Federal Constitution.[1] It was reported that Minister in the Prime Minister’s Department, Dato’ … Continue reading “Malaysian Bar: Supremacy of Federal Constitution and Syariah Court Enactments (2016) June 8, 2016”

Malaysian Bar Press Release | Preserve, Respect and Uphold the Supremacy of the Federal Constitution
8 June 2016

The Malaysian Bar is extremely concerned over recent attempts by certain parties to ignore or reject entrenched principles in our supreme law, namely the Federal Constitution.[1]

It was reported that Minister in the Prime Minister’s Department, Dato’ Seri Jamil Khir Baharom (“Minister”) said that “the laws to ban unilateral conversion contravenes [sic] Article 12(4) of the Federal Constitution which states the religion of a minor under the age of 18 can be determined by their respective mother or father”.[2]

The Minister’s remarks are erroneous. Article 12(4) of the Federal Constitution provides: “For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian” (emphasis added).[3] Article 12(4) must be read with the interpretation provisions in the Federal Constitution — Article 160 and the Eleventh Schedule — that provide that all words in the singular also include the plural. Hence, the religion of children under the age of 18 is to be decided by both parents, where both parents are alive. Continue reading “Malaysian Bar: Supremacy of Federal Constitution and Syariah Court Enactments (2016) June 8, 2016”

MCCBCHST: WE REJECT THE PRIVATE MEMBERS BILL ON HUDUD

Henceforth, the new Hudud Bill or the “Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016” that is tabled in Parliament should be called UMNO-PAS Hudud Bill. After all, without special assistance from UMNO, the Bill that was tabled by PAS (Hadi) would not get a chance to be debated in Parliament. If passed, the Bill will place the Federal Constitution on a slippery slide leading to a Shariah dominated Constitution. Malaysia will go the way of Pakistan where religious minorities (Christians) are often subject to false accusations and punishment under the Islamic Blasphemy Law. Nearer home, we should be alarmed at the prospect of non-Muslims being caned for ‘violating’ Islamic offences: Re: “Woman, 60, Caned for Selling Alcohol in Aceh” StraitsTimes (14 April 2016); See Also “For First Time in Indonesia, non-Muslim Caned under Islamic law” LosAngelesTimes (16 April 2016).

Perhaps, it would be good to refresh our understanding of the Kelantan Hudud Law: LINK

In the face of this present danger, Non-Muslims (especially East Malaysians) must go beyond a adopting poster of resignation and quiet skepticism toward the hollow assurance from the Prime Minister. They must call upon their Members of Parliament and insist that their MPs vote against the UMNO-PAS Hudud Bill.

To read and comment on the full post, please visit my other blog, Religious Liberty Watch: MCCBCHST: WE REJECT THE PRIVATE MEMBERS BILL ON HUDUD LINK

Call for Rational Debate of Hudud and Implementation of Syariah Compliant Govenment Policies on Non-Muslims

It is encouraging to find Malaysians across the race-and-religion divide coming together to call for rational debate on hudud and the related Kelantan Syariah Criminal Code (1993), and affirming that: – As all Malaysians, Muslims or non-Muslims, Kelantanese or non-Kelantanese, are rightful stakeholders in the enforcement of KSCC, no one should be penalised, threatened or … Continue reading “Call for Rational Debate of Hudud and Implementation of Syariah Compliant Govenment Policies on Non-Muslims”

– As all Malaysians, Muslims or non-Muslims, Kelantanese or non-Kelantanese, are rightful stakeholders in the enforcement of KSCC, no one should be penalised, threatened or ridiculed for having or expressing any opinion on the matter.

– The success of Islamic banking in winning over the hearts and minds of non-Muslims through rigour and proven benefits, rather than a deceiving assurance of non-Muslim exclusion or a sloppy “trial-and-error” attitude, should be an inspiring example.

– The implementation of KSCC must not be decided on a winner-takes-all manner, such as a simple majority in the Dewan Rakyat, for this will risk tearing the country apart.

– The inclusive spirit of the Federal Constitution and the 1963 Malaysia Agreement, which lay down the secular basis of the Federation of Malaysia, must be upheld.

First, the provisions of the Kelantan Syariah Criminal Code is so evidently ultra vires the Federal Constitution that there is a prima facie case to reject it out of hand. It is agreed that the call for rational dialogue should not be restricted to debating whether one should support or oppose hudud. It is a call to all Malaysians to respect the provision related to the status of Islam and other religions in the Federal Constitution which is premised on a secular framework. Put concretely, the starting point for dialogue should be the original intent of the Federal Constitution as a secular-state where there is no establishment of religion, or provision for a dominating position for Islam. In this regard hudud or any Islamic law should not be part of our legal system, except in matters of personal law specifically enumerated in the Constitution. See related post: Malaysia Social Contract (Part 1): Religion and Equal Citizenship and Historic Documents on the drafting of the Constitution.

Second, the rational debate should publicly call into question not only the overt hudud agenda of the Kelantan government, but also the arguably, clandestine introduction of syariah compliant provisions in various State enactments in UMNO dominated State Legislative Assemblies (Dewan Undangan Negeri), and imposition of syariah compliant policies in the government departments affecting non-Muslims. Hudud naturally elicits strong and vocal opposition from all reasonable Malaysians as its implementation is an obvious and undeniable act of injustice against non-Muslims. In contrast, the introduction of syariah compliant laws and departmental policies are subtly and incrementally implemented so that non-Muslims remain unaware of the gradual erosion of their fundamental liberties.

In either case, the inclusive spirit and universal justice enshrined in the Federal Constitution would be shattered by the fatal blow of hudud, or gradually extinguished by the covertly introduced syariah compliant laws of the State Legislative Assemblies and government department policies. Continue reading “Call for Rational Debate of Hudud and Implementation of Syariah Compliant Govenment Policies on Non-Muslims”

Freedom of Religion after the Catholic Herald Court Judgments. Part 2/2

Part 2/2: Implications for Freedom of Religion arising from the Catholic Herald Court Judgments The Federal Constitution provision for freedom of religion has been undermined when the higher courts ruled that the ‘sanctity of Islam’ defines and limits freedom to practice other religions. Surely this unconstitutional restriction also applies to all other fundamental liberties enshrined … Continue reading “Freedom of Religion after the Catholic Herald Court Judgments. Part 2/2”

Part 2/2: Implications for Freedom of Religion arising from the Catholic Herald Court Judgments

The Federal Constitution provision for freedom of religion has been undermined when the higher courts ruled that the ‘sanctity of Islam’ defines and limits freedom to practice other religions. Surely this unconstitutional restriction also applies to all other fundamental liberties enshrined in the Federal Constitution since fundamental liberties are an inseparable whole, like a ‘seamless cloth’.

Preview of Conclusion
As a result of the decision by the Court of Appeal in the Catholic Herald, the law as it currently stands appears to be that the term ‘Allah’ should not be used by any non-Muslim group in Malaysia as it is not an essential and integral part of the religion. Article 11 only protects what is mandatory in a religion which according to the CA’s interpretation is a severely restricted freedom. Article 11 has to be read with article 3 which was inserted to protect the sanctity and supremacy of Islam. This means that other religions can be practiced in peace and harmony throughout the Federation as long as it does not affect the sanctity of Islam.

Read the attached document “Freedom of Religion after the Catholic Herald Judgments” for a careful and insightful analysis of these disturbing developments:

Freedom of Religion after the Catholic Herald Continue reading “Freedom of Religion after the Catholic Herald Court Judgments. Part 2/2”

Freedom of Religion after the Catholic Herald Court Judgments. Part 1/2

Part 1/2: Backdoor Islamization of Malaysian Laws – State Islamic Enactments Silently Rewrite the Federal Constitution via Illegitimate Use of the Penal Code. Related Post: Part 2/2: Implications for Freedom of Religion arising from the Catholic Herald Court Judgments The recent judgments by the Court of Appeal and the Federal Court failed to clarify … Continue reading “Freedom of Religion after the Catholic Herald Court Judgments. Part 1/2”

Part 1/2: Backdoor Islamization of Malaysian Laws – State Islamic Enactments Silently Rewrite the Federal Constitution via Illegitimate Use of the Penal Code.

The recent judgments by the Court of Appeal and the Federal Court failed to clarify and delimit the bounds of authority of the State Islamic Authorities in relation to non-Muslims. The result is an ongoing process of silent rewriting of the Federal Constitution that violates the fundamental liberties of all citizens enshrined in the Federal Constitution. The failure of the higher Courts to address and arrest the backdoor Islamization of the legal system can only result in ascendency and final supremacy of Syariah law for the country.

Read the attached document “Freedom of Religion after the Catholic Herald Judgments” for a careful and insightful analysis of these disturbing developments:

Freedom of Religion after the Catholic Herald

Highlights from Document Freedom of Religion after the Catholic Herald Court Judgments Continue reading “Freedom of Religion after the Catholic Herald Court Judgments. Part 1/2”

Kota Kinabalu Declaration 2014 on Malaysia Day

An important declaration calling the Federal government to honor the Malaysia Agreement (1963) and implement just governance that gives due recognition and respect for the rights of citizens of Sabah and Sarawak. Highlights 7 AND WHEREAS the proliferation of oppressive laws that violates our fundamental civil liberties continues unabated, the legislative, executive and the judiciary … Continue reading “Kota Kinabalu Declaration 2014 on Malaysia Day”

Highlights

7 AND WHEREAS the proliferation of oppressive laws that violates our fundamental civil liberties continues unabated, the legislative, executive and the judiciary must take urgent measures to remove such offensive laws and selective prosecutions and to restore just, fair, and democratic principles of governance as envisaged by the framers of our Constitution and our founding fathers.

12 AND WHEREAS Islam is the religion of the Federation but other religions may be practised and people of other faiths shall have the constitutional right and freedom to profess, practise, propagate, and manage their respective faiths without interference and intervention by the State. 13 AND WHEREAS the Constitution provides for laws to be enacted for the administration of Islam, such laws shall not be applied to non-Muslims nor non-Muslims be subject to Shariah law.

14 AND WHEREAS freedom of religion is guaranteed by the Federal Constitution and set out in the first of the 18 and 20-point conditions of Sarawak and Sabah respectively to be part of the Malaysia Agreement, but the legislative, executive and judiciary have persistently and wilfully trampled upon such rights of people of other faiths by making laws and decisions that militate against such freedom. The prohibition of the usage of the word ‘Allah’ by Bumiputera Christians to refer to the one true God and the restricted ban on the use of the Alkitab, the Malay language Bible, since the early 1980s are instances of gross violations of human rights.

19 AND WHEREAS there are extremist dakwah elements who undertake aggressive Islamisation by both covert and overt means to convert Bumiputera Christians through intimidation, deception, or inducements particularly targeting remote and poor villagers as well as conversions of school children living in government hostels. The National Registration Department despite its denials are also classifying native Christians with ‘bin’ or ‘binti’ in their names as Muslims in their MyKad without their knowledge or consent. Such unlawful and oppressive practices must stop immediately. Continue reading “Kota Kinabalu Declaration 2014 on Malaysia Day”

Selangor Enactment (2003) Says Syariah Court Has No Jurisdiction Over Non-Muslims. MAIS Please Read!

The Administration of the Religion of Islam (State of Selangor) Enactment 2003 plainly says Syariah Court has no jurisdiction over non-Muslims! MAIS/JAIS should read section 74 of the Enactment. Surely, “the right and property of a non-Muslim” includes the Bibles illegally seized by JAIS. The decent thing for MAIS/JAIS to do is to return the … Continue reading “Selangor Enactment (2003) Says Syariah Court Has No Jurisdiction Over Non-Muslims. MAIS Please Read!”

The Administration of the Religion of Islam (State of Selangor) Enactment 2003 plainly says Syariah Court has no jurisdiction over non-Muslims! MAIS/JAIS should read section 74 of the Enactment. Surely, “the right and property of a non-Muslim” includes the Bibles illegally seized by JAIS. The decent thing for MAIS/JAIS to do is to return the Bibles with an apology!

————————

Enactment No. 1 of 2003
ADMINISTRATION OF THE RELIGION OF ISLAM (STATE OF SELANGOR) ENACTMENT 2003

An Enactment to make new provisions on the administration of the religion of Islam, the establishment and jurisdiction of the Syariah Courts, the establishment and functions of the Majlis Agama Islam Selangor, and other matters related thereto.

[1 September 2003]
[Sel. P.U. 25/2003]

PART IV
SYARIAH COURTS

74. Jurisdiction does not extend to non-Muslims
(1) No decision of the Syariah Appeal Court, Syariah High Court or Syariah Subordinate Court shall involve the right or the property of a non-Muslim.
(2) For the avoidance of doubt, it is hereby declared that a Muslim shall at all times be acknowledged and treated as a Muslim unless a declaration has been made by a Syariah Court that he is no longer a Muslim.

Malaya/Malaysia is a Secular State: Minister Jamil Baharom is Wrong

The Malaysian Insider easily refuted Minister in the Prime Minister’s Department Datul Seri Jamil Khir Baharom who asserted simplistically (and I would venture to say, insincerely) that Malaysia is not a secular state. Re: Look Up the History Books, Malaysia is a Secular State : “A Malaysian minister is insisting that Malaysia is not a … Continue reading “Malaya/Malaysia is a Secular State: Minister Jamil Baharom is Wrong”

“A Malaysian minister is insisting that Malaysia is not a secular state, and that is anchored in Islamist roots because there are the Malay rulers and state Islamic laws exist for Muslims. That argument might have worked if it was just Malaya…But you know what, Mr Minister, we are now in Malaysia…The reality is, of course, different. Malaysia is a secular state where the rule of law is supreme. The Federal Constitution is the basic law, not the Quran.”

I would go further and assert that the Minister’s argument won’t work even if we restrict the case just to Malaya. We only need to go back to read the Foundational Documents of the 1957 Federal Constitution at the formation of Malaya. For example, the Reid Commission states unequivocally that Malaya is a secular state: Continue reading “Malaya/Malaysia is a Secular State: Minister Jamil Baharom is Wrong”

No Need to Comply When JAIS Abused its Limited Power to Harass non-Muslim Institutions

Much of the public discussion over the recent JAIS raid on Bible Society of Malaysia (BSM) has focused on who should be held responsible for an illegal raid. I shall briefly note that UMNO went on a road show to support JAIS after the seizure of the Bibles. We cannot overlook the insincerity and failure of the Federal government to honor the 10 points. Selangor MB deserves criticism for not reprimanding JAIS and instructing it to redress its illegal raid (granted he faced political constraints and impossible circumstances after the Sultan’s decree). The issue has become a political football passed between AG, the Home Ministry and the Selangor government. Let blame be rightly apportioned to all these wrongful parties. Continue reading “No Need to Comply When JAIS Abused its Limited Power to Harass non-Muslim Institutions”

PM Must Declare Sabah Christians Right to Use Alkitab, Notwithstanding the Fatwa (2003)

Customers are painfully aware that redemption coupons often are not what they seem to be. Remember the old customer advisory, “What the bold print giveth, the fine print taketh away.” One can only feel let down after reading the fine print in the “Terms and Conditions Apply” section stipulating the coupon is valid only at … Continue reading “PM Must Declare Sabah Christians Right to Use Alkitab, Notwithstanding the Fatwa (2003)”

Customers are painfully aware that redemption coupons often are not what they seem to be. Remember the old customer advisory, “What the bold print giveth, the fine print taketh away.” One can only feel let down after reading the fine print in the “Terms and Conditions Apply” section stipulating the coupon is valid only at certain branches. Worse still, the customer service may refer to a hitherto unannounced in-house policy which says the coupon is valid only for ‘privileged members’.

To be fair, PM Najib finally comes clean with the fine print “terms and conditions” of his 10-point redemption coupon. Indeed, he highlighted it in bold print. As reported,

Prime Minister Datuk Seri Najib Razak reiterated today that state enactments on the use of terms deemed exclusive to Muslims override the Cabinet’s more generous 10-point agreement on the matter. “The 10 points are subject to state constitution and enactments. Where there are state enactments, they will supersede the 10-point agreement,” he told reporters. “We have made our stance clear.” [Themalaymailonline 27/01/2014]

Still, PM Najib was quick to assure the East Malaysians that he has “special terms and conditions” for them. The STAR (24 Jan 2013) in “Najib: 10-point Resolution on Allah Issue Subject to Federal, State Laws” reported,

Najib… took note of the Cabinet’s 10-point resolution on this matter in 2011, which among others, allows the Christian community in Sabah and Sarawak to continue using the word Allah in the Malay version of the Bible. However, he said the points therein were subject to Federal and state laws.

“This means that if the state has an enactment (on use of the word Allah), it is subject to this. If the state does not have such an enactment, like Sabah and Sarawak, so the usual practice will be continued and no party should scare others,” he told reporters after chairing the Umno Supreme Council meeting at Menara Dato Onn on Friday.

However, East Malaysians, especially Sabahans, should be guarded in accepting the PM’s assurance or redemption coupon. They may be in for a rude shock as the customer service of the PM’s ‘Departmental Store’ has a track record applying ambiguous in-house policy to reject redemption coupons. For example, some goods (supposedly Islamic terms) can only be sold to privileged members; a fortiori, customers cannot use redemption coupons to get them.

Put concretely, Sabah Christians should be aware that the state has gazetted on 1 June 2003 a fatwa prohibiting non-Muslims from using 32 so-called Islamic terms under the Enakmen Pentadbiran Undang-Undang Islam 1992.

Under normal circumstances, fatwas should have no bearing on non-Muslims. That is to say, a fatwa must be gazetted to have legal effect (on Muslims). But a fatwa, even one that is gazetted, has no application to non-Muslims since it is still being gazetted under the state Shariah enactment, which does not apply to non-Muslims. Continue reading “PM Must Declare Sabah Christians Right to Use Alkitab, Notwithstanding the Fatwa (2003)”