The waltz around Hadi’s bill

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After allowing Hadi Awang’s private member’s bill to leapfrog over the queue of government bills uncharacteristically at the last sitting, Umno is now using its non-Muslim BN partners to push the Act 355 amendment bill back in the box.

Wasn’t it a tad deceitful to toy with this, knowing full well that BN partners would oppose it tooth and nail? This is akin to slicing at both sides. Where was the famous BN consensus when Hadi’s bill was cleared for take off to climb to where it now is?

With Hadi’s bill now vying for the attention of the house, BN leaders have said that clearance to deliver its cargo of shariah amendments will likely be withheld as consensus has been reached that government bills must rank ahead. This would be a triumph if grabbing the spotlight for wobbly logic and political adventurism were measures for success.

This lends credence to some views alleging that the government, in bringing Hadi’s bill to the fore, was trying to divert attention from a major scandal. The recent ruling by the Dewan Rakyat Speaker – that any discussion of the US Department of Justice’s civil suit would be sub judice, seems to be another link in the cordon that surrounds what is most taboo. The honourable Speaker, in his keenness to avoid embarrassing debates, has overstretched any reason or truth.

The parliament of sovereign Malaysia should not have to pay heed to what is or isn’t sub judice to a case being tried in a court outside our territory. Surely, the principle has been distorted by the honourable Speaker. The legal maxim as applied by him does not exist anywhere except in his ruling.

Back to the matter of Hadi’s bill. A clear reading of Act 355 will show that it confers jurisdiction upon the shariah courts in their administration of Islamic Law. It does not stop state legislatures from making Islamic laws but those laws do not carry automatic jurisdiction unless it complies with 355. Thus 355 acts as a speed break which restricts the penalty a shariah court may impose. At present this is limited to a maximum sentence of three years’ imprisonment, a maximum fine of RM5,000 and whipping up to six strokes, the so-called 3:5:6 rule.

Poor information management

This bill will be put through the procedural mill like any other to decide if the motion to debate it gets approved or rejected. If rejected, then that would be that. But if approved, the bill would then be presented to the house by the minister concerned, to be read and debated on before a vote is taken.

PAS’ poor management of information has been its own greatest enemy. No one from PAS seems able or authorised to speak on the real implications of the bill. We must suppose this is because few have studied the bill in depth or understood its true implications except for a few in a tight elite circle.

In the absence of a clear direction from the top on whether PAS or Umno would be taking the lead on this, most have chosen to speak in generalities and in emotive language about the sanctity and spirit of the bill. They have even taken considerable pains to stress that the intent of the bill was not hudud related. But no one’s suspicions seem to have been allayed.

Act 355, we must recall, is federal law and it regulates the administration of Islamic law. It is not an Islamic law as such but a code on how the law should be practised in the shariah court system. Thus, the proponents of the amendments bill are quite correct in saying that it is not related to hudud. But that is only part of the truth. Islamic law is a matter for the state and it is thus enacted in state assemblies. No one will admit that an elephant is in the room with the key to complete the task.

Broadly, hudud is about matching a crime to its attendant punishment according to Islamic precepts. Hudud already exists as a category covering certain crimes within the list contained in the Shariah Criminal Code (II) (1993) 2015 of the Government of Kelantan Gazette. This legislation has all the bells and whistles which would make it the most comprehensive Islamic law, but it has yet to come into force. It has been left dormant because much of the prescribed punishments exceed the 3:5:6 rule. Some crimes listed in the Kelantan enactment also appear in the Federal Penal Code, which cannot stand if the enactment is to be in line with the Federal Constitution.

Hadi’s bill now before the house proposes to amend Section 2A of Act 355 to confer jurisdiction on the shariah courts to mete out sentences according to the Shariah Criminal Code, excluding death. If the bill passes, the roof will be raised so high as to allow carte blanche where most of the punishments on the list would come into compliance with Act 355 so long as “death” is not a part of it. Thus, only death would be ruled out and everything else would be ruled in.

Why then the need to dance an intricate waltz around the bill if supporters of it disavow that it has anything to do with hudud? It doesn’t bring us any closer to a solution that would serve society as a whole. But it would push our polarised people deeper into their ideological corners and anguish their hearts. Wouldn’t it be better to light a candle than curse the darkness by coming clean on how the bill would really affect us as an entire nation?
It is not only the “for” that have been misunderstood. The “against” have also been misrepresented. It is not about religion but the freedom of it. This isn’t something to be taken lightly. This software won’t be uninstalled once it has been fed into the system.