The Sociopolitical Landscape and the Demand for Islamic Criminal Law
Any views, that the issue on overlapping jurisdiction between the Malaysian civil and syariah court is purely judicial, will most surely be regarded as simplistic. It is essential to avoid the mistake of entirely dismissing the influence of the local social and political landscapes on igniting this issue.
Malaysia has a Muslim population of 61.3%1, which effectively categorizes it as a multi-cultural country with a small Muslim majority. Apart from Malaysia, there are only two other multi-cultural, former British colonies with a small majority of Muslims, namely Brunei and the occupied territory of Palestine (which includes Israel)2. Out of these three states, only two own a constitution which expressly uphold Islam as the religion of the country or the federation. These two states are Malaysia and Brunei – both Malay governments.
There are no other multicultural countries in the world with a small Muslim majority that uphold Islam to such a degree of importance like these two Malay governments. A look at another state with a small Muslim-majority – the Arab territory of Palestine – a former British colony that was once governed by Sir Henry Gurney (1946-1948) before he was assigned to Malaya (1948-1951) – not only a constitution is non-existent, but the Muslims are powerless in their own homeland. It will be inaccurate to compare situations with countries like Egypt and Pakistan which have more than 94% Muslim population2. Indonesia has the largest Muslim population in the world and Syria and Turkey have more than 92% Muslim population2, yet Islam is still not named as an official religion in these countries.
Constitutional expert Professor Dr. Shad Saleem Faruqi argues that once Islam has been referred to as the religion of the Federation, then the implication is that Malaysia could no longer be considered as a “full-fledged secular state”.3 There is no secular government in the world that has named not only Islam, but any religion, as its official religion in its constitution. The Malaysian government’s action to declare Islam as the religion of the Federation therefore means that it is free from any obligation to be neutral in religious matters, and the full support of the government for Islam is permitted by the highest law of the nation.
Consequently, money collected from the Malaysian government’s tax could be used to build mosques, Islamic institutions such as the Pusat Pungutan Zakat (tithe collection centres), religious schools, the International Islamic University, the Lembaga Tabung Haji (haj fund board), the Institute of Islamic Understanding (IKIM) and others. Tax money is also used to send local students overseas to study Islam, syariah courts were established, and Islamic practices such as azan (call for prayer) and khutbah (weekly sermon) are widely broadcast through the mass media. A secular government, ideologically demanded to become neutral in its support to any faith, will not be able to do the same.
With decades of full government support towards Islam, the younger Malaysian Muslim generation became so accustomed with the Islam-friendly environment, and started to fail, deliberately or otherwise, to notice that this special treatment does not exist even in neighbouring countries such as Singapore and Indonesia, the most populous Muslim country in the world. Many also have even started to demand for something more: including hudud (a category of punishments in Islamic criminal law for certain offences, which some parties have believed to include sodomy). These groups prefer to ignore the fact that there are no multicultural countries in the world with a small Muslim majority, which have successfully implemented hudud laws at the national level. Even the recently Muslim Brotherhood-controlled Egypt, a former British colony with 94.7% Muslim population2 which had amended its constitution in 2012, does not implement hudud.
Many other countries like Algeria, Jordan, Libya, Morocco, Oman, Syria, Turkey and Tunisia which have a Muslim population of 90% or more2, do not implement hudud. In fact, countries that enforce the syariah criminal law such as Afghanistan, Saudi Arabia, Iran, Maldives, Mauritania, Pakistan, Sudan and Yemen, all of which have populations of more than 97% Muslim, with the exception of Qatar (77.5%).2
Implementation of Islamic Criminal Law in Malaysia
Amendment to the Federal Constitution and the Syariah Courts (Criminal Jurisdiction) Act
In Malaysia the most prominent group who demanded for the implementation of Islamic criminal law is the Islamist political party PAS (Pan-Malaysian Islamic Party). The PAS-controlled state government of Kelantan had first passed the Enakmen Kanun Jenayah Syariah 1985. Subsequently when PAS took over the state government of Terengganu in the 1999 General Election, PAS had gazetted the Enakmen Kesalahan Jenayah Syariah (Hudud dan Qisas) Terengganu 1423H/2002M.
However, the hudud elements in both of these state enactments cannot be allowed into force without amendments to the Federal Constitution, specifically the Ninth Schedule, List I, Paragraph 4 that places crime-related laws under the authority of the Parliament (Federal). The second amendment should be done to the Ninth Schedule, List II, Paragraph 1, which provides that the state government does not have the power to create any criminal law.
In addition to the Constitution, Section 2, Syariah Courts (Criminal Jurisdiction) Act 1965 also requires an amendment in order to allow the enforcement of hudud. Former member of Parliament for Kulim-Bandar Baharu, Dato’ Zulkifli Noordin had suggested that hudud can be implemented with merely an amendment to this particular act, and without the need to amend the Constitution.4 However, this opinion is not accurate since according to Article 4 of the Constitution, any law that contradicts the Constitution is considered void.
The Mathematical Reality of Amending the Federal Constitution
Can PAS solely implement hudud? The answer is a definite ‘no’. This is because PAS does not have enough members of the Parliament to amend the Constitution. For an amendment to be passed, the majority of at least two thirds of the members of both houses of Parliament is required. This means that 148 of the 222 members of the Dewan Rakyat, and 47 of the 70 members of the Dewan Negara, need to support the amendment.
After the 13th general election, PAS has only 21 members of the Dewan Rakyat (less 127 members from a two thirds majority).
Even if PAS could successfully persuade all members of the Dewan Rakyat from its political ally PKR to support a hudud bill, the number of members from both parties (PAS and PKR) is still not enough (51 members of the Dewan Rakyat – less 97 members from a two thirds majority). This is before taking into account if PKR members of Parliament who are not Muslim will oppose the bill. Curiously, another of PAS’s political ally – DAP – which holds the greatest number of seats amongst the opposition parties in Parliament, vehemently opposes hudud in principle.
If PAS had won all parliamentary seats it contested in the 13th general election, the number of members is still not sufficient to amend the Constitution (72 members of the Dewan Rakyat – less 76 members from a two thirds majority).
Interestingly, even if PAS could persuade all members of Parliament from its biggest opponent UMNO to support a hudud bill, the total number of members from both parties is still 39 less from a two thirds majority.
1. Department of Statistics, Malaysia, Population Distribution and Basic Demographic Characteristics 2010 (Department of Statistics, Malaysia) p.9.
2. Pew Research Center, “The Future of the Global Muslim Population”, available at http://features.pewforum.org/muslim-population/, accessed on 23 June 2013.
3. Prof Dr Shad Saleem Faruqi, Document of Destiny (Star Publications Malaysia Berhad Petaling Jaya 2008) p.127.
4. Zulkifli Noordin, “Hudud Siapa?”, available at http://zul4kulim.blogspot.com/2011/10/hudud-siapa.html. Accessed on 23 June 2013.