The recent rift in Pakatan Rakyat appears to be worsening with the PAS-led Kelantan state government pushing hard for their hudud agenda. As DAP Parliamentary Leader Lim Kit Siang has pointed out, if the hudud agenda goes ahead with the backing of both PAS and UMNO, it may spell doom not only for Pakatan Rakyat but also Barisan Nasional.
The situation is actually far worse than what Kit Siang has warned us about, not only will it impact and shift the political ground, it may spell doomsday for the Federation of Malaysia!
As reported, Kelantan will have a special legislative assembly sitting on 29th December 2014 to push through the implementation of hudud, and Kelantan MB Ahmad Yaakob had said the sitting will go on despite the worsening flood conditions in the east coast state.
Theoretically, it is not impossible to have one country with two systems of criminal justice. Nigeria – a federation – has Syariah law system for 12 of its states and Indonesia – a unitary state – has a special arrangement with Aceh to implement Syariah law.
Kelantan has every right to demand for the implementation of hudud law within its borders but it must seek a new Federal Constitution that has a looser arrangement and more powers to be given to the state. The complexity of having two criminal justice systems must be thoroughly thought out. PAS has every right to propose hudud, but please provide the detailed studies and insight beforehand.
State-level hudud law is a constitutional and not technical matter. It is also a federation-wide and not a Kelantan-only matter. The issue therefore cannot be resolved and decided unilaterally by the Federal-Kelantan Joint Technical Committee, and pushed for implementation unilaterally by Kelantan state government.
Sharing the same sentiment as Universiti Teknologi Mara (UiTM) legal advisor Emeritus Professor Datuk Dr Shad Saleem Faruqi, the argument that hudud would be confined to Kelantan was inaccurate as once the amendments are approved and passed, all other states that accept Islam as its official religion will also proceed to make similar changes.
(Shad Saleem is reported to have presented his views during a roundtable discussion on the implementation of hudud organised by the Global Movement of Moderates in May this year. It is learnt that the majority of the speakers attending the discussion opined that hudud law was not suitable to be implemented in the Federation of Malaysia.)
Any such changes to the Constitution would require the widest possible consultation with non-Muslims as well as intra-Muslim consultation. Therefore, the Federal-Kelantan Joint Technical Committee and the Kelatan state government alone are not fit to decide on the implmentation of state-level hudud law unilaterally.
Hudud is not a personal, religious practice involving Muslims only, but it is a matter of political system which involves and affects all Malaysians. The Ninth Schedule of the Federal Constitution categorically places “Civil and criminal law and procedure and the administration of justice” under List I (Federal List).
Employing Article 76A “Power of Parliament to extend legislature powers of States” to transfer the federal power on criminal justice to a state is tearing apart the Federal Constitution through a backdoor tactic.
The current Federal Constitution is the political contract that Malaya, Sabah, Sarawak and then Singapore signed up for in 1963. The Ninth Schedule is a packaged deal and central in this political contract, and therefore to Malaysia. All parties wishing to unilaterally trigger a constitutional crisis be warned: they must then bear the full political responsibility for the disintegration of Malaysia.
To tear apart the Ninth Schedule is to tear apart the Federal Constitution, which in turn is to tear apart the Federation of Malaysia.