"If Kelantan is given the power over criminal justice under Article 76A – whether through a Government Bill or Private Member’s Bill – it will be a constitutional coup against the 1963 Malaysia Agreement"
KUCHING, April 8, 2015 - Thirty-three civil society
groups in Sabah and Sarawak have called for a thorough renegotiation of the
Federal Constitution if Kelantan insists of enforcing its Syariah Criminal Code
II (1993) 2015.
They hold the following positions:
1. In
forming Malaysia with Malaya and Singapore in 1963, Sabah and Sarawak signed up
for a secular federation, not a theocratic one where any religious criminal
justice system may be in force in any part of the Federation.
2. Religious
freedom was amongst the top demands of Sabah and Sarawak in the Malaysia
negotiations which produced the Inter-Governmental Committee Report and
eventually the 1963 Malaysia Agreement. Sabah and Sarawak would not have been
part of Malaysia if Syariah criminal law was an item in the negotiation.
3. Secular
justice system on crimes as a federal jurisdiction is part of the entire
constitutional package embodied in the Ninth Schedule of the Federal
Constitution. Any fundamental change to this packaged deal requires a thorough
renegotiation of the Federal Constitution.
4. Sabahans
and Sarawakians are legitimate stakeholders in the Kelantan Syariah Criminal
Code II (1993) 2015 for if the enactment comes into force, these are amongst
the consequences
a. If
Sabahans and Sarawakians - regardless of faith -- fell prey to thefts,
robberies, homicides and bodily harms committed by Muslims, their cases will be
tried in the Syariah court, and not Common law Court. [Section 2 of the Code]
b. Sabahans
and Sarawakians will not have full testifying competence in Syariah Court if
they are non-Muslim, women, under-aged Muslims or Muslims with questionable
religious conducts. [Section 41 of the Code, and Sections 83 and 86 of Kelantan
Evidence Enactment of Syariah Court 2002]
c. Sabahan
and Sarawakian Muslims are accused of stealing or robbing of anything worth
more than 4.45 gram of gold (about RM 620 at current price), they will be tried
in Syariah Court and may face the punishment of amputation. [Sections 6-11 of
the Code]
d. Sabahan
and Sarawakian Muslims who are convicted of adultery or sodomy in Kelantan may
face death penalty by way of stoning. [Sections 12-15]
e. Sabahan
and Sarawakian Muslims who are convicted of drinking in Kelantan may face 40 to
80 lashes. [Section 22]
f. Sabahan
and Sarawakian Muslims who are convicted of heresy [irtidad or riddah] may face
death penalty and forfeiture of all properties. [Section 23]
g. Murderers
of Sabahans and Sarawakians will escape death penalty when the prosecution
cannot produce testimonies by two good adult male Muslims.
5. The
first and foremost issue in Kelantan’s claim to enforce syariah criminal law is
not democracy, but sovereignty. As a sovereign nation, Brunei can enforce
syariah criminal law even though it is not a democracy. Even if the Code has
been democratically deliberated, rather than concealed from prior public
scrutiny, Kelantan has no constitutional competence to enforce the Code because
Kelantan is not a sovereign country like Brunei. Sabah and Sarawak objecting to
the Code is therefore not infringing Kelantanese’ democratic aspiration.
6. If
Kelantan is given the power over criminal justice under Article 76A – whether
through a Government Bill or Private Member’s Bill – it will be a
constitutional coup against the 1963 Malaysia Agreement, no less than advocacy
of separatism. By skirting the need of a two-third parliamentary majority to
amend the Ninth Schedule, a bill under Article 76A undermines the veto
potential of the 57 parliamentarians from East Malaysia. It will effectively
not just write off the status of Sabah and Sarawak as equal partners of Malaya,
but even places Sabah and Sarawak as constitutionally inferior to one of
Malaya’s states.
7. If
Kelantan insists to enforce its Syariah Criminal Code, then Malaysia needs to
have a new Federal Constitution. To prevent a constitutional crisis that erodes
the moral basis of Malaysia as a nation, we call upon the Federal Government or
the Sabah and Sarawak state governments to convene a Malaysia Summit attended
by all lawmakers and executive branch at the Federal and State levels to
deliberate on a new Federal constitutional arrangement, whereby Sabah and
Sarawak may have other rights devolved if Kelantan were to have its own
criminal justice system.
The civil society groups, which endorsed the statement,
are:
1. Archdiocesan
Human Development Commission (AHDC) Kota Kinabalu, Sabah
2. Baramkini
3. Belia
Saint Aloysius Limbanak, Sabah
4. Borneo's
Plight in Malaysia Foundation (BoPiM)
5. Borneo
Resources Institute Malaysia, Sarawak (BRIMAS)
6. Consumer
Association And Protection Sabah (CAPS)
7.
Cornerstone Resources Berhad, Sabah
8. Damn
the Dams, Sarawak
9. Gerakan
Anak Sarawak (GASAK)
10. Institute
for Development of Alternative Living (IDEAL)
11. Jaringan
Orang Asal SeMalaysia (JOAS)
12.
Jaringan Tanah Hak Adat Bangsa Asal Sarawak (TAHABAS)
13. Komiti
Belia Perlaksana Child of Jesus, Sabah
14. Komiti
Belia Perlaksana Minintod, Sabah
15. Land,
Empowerment, Animal, People (LEAP), Sabah
16. Malaysia
Trade Union Congress (MTUC), Sabah Division
17. Northern
Green Youth, Sarawak
18. PACOS
Trust, Sabah
19. Peoples
Green Coalition, Sarawak
20. Pusat
Sumber Adat dan Mediasi Kaum Anak Negeri Sabah (PUSAKA)
21. Rise.
Of. Sarawak. Efforts (ROSE)
22. Sabah
Banking Employees' Union
23. Sabah
Environmental Protection Association (SEPA)
24. Sabah
Women Action Resource Group (SAWG)
25. Saccess
Sarawak
26. SALT
Movement
27. Sarawak
Dayak Iban Association (SADIA)
28. Sarawak
Women for Women Society (SWWS)
29. SAVE
Rivers Sarawak
30. Sembang-Sembang
Forum, Sarawak
31. St.
Marcellinus Church, Minintod, Sabah
32. St.
Theresa Child of Jesus Church, Sabah
33. Tim
Pelayanan Belia Paroki Penampang, Sabah
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