To tear apart the Ninth Schedule is to tear apart the Federal Constitution, which in turn is to tear apart the Federation of Malaysia. State-level hudud law will need a new Federal Constitution to keep the Federation together.
State-level hudud law is a constitutional matter. It is also a federation-wide matter, not a Kelantan-only matter.
The issue cannot be resolved and decided unilaterally by the Federal-Kelantan Joint Technical Committee.
What will the Rulers say?
If hudud is to apply on all Muslims including the Rulers, unlike how it is hypocritically done in Brunei to exempt the Sultan, Article 182 of the Federal Constitution on “Special Court”, which operates under common law only, must be amended.
Umno and PAS will be deeply disrespectful of the Palaces if they want a hudud law applying to all Muslims when in Kelantan, if any attempt to amend Article 182 is not brought to the Conference of Rulers for discussion, even though the amendment does not constitutionally require the Rulers’ consent.
Are the Rulers inclined to have themselves subjected to hudud law when they are in Kelantan? As a key stakeholder in the Federation of Malaysia, their voices should be heard.
What no party should ever do
As a matter of fact, what we need is not just piecemeal amendments to the 1963 Federal Constitution, but a new Federal Constitution that was actually promised to Sabah and Sarawak in the negotiation.
Hudud is not about a personal religious practice involving Muslims only, but it is a matter of political system involving 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 Federal Constitution through a backdoor tactic.
The current Federal Constitution is the political contract that Malaya, Sabah, Sarawak and Singapore signed 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.
What Kelantan should do
It is however not impossible to have one country with two systems of criminal justice. Nigeria – a federation – has a sharia law system for 12 of its states and Indonesia – a unitary – has also special arrangement for Aceh to implement sharia law too.
Kelantan has every right to demand implementation of hudud Law within its border but it must seek a new Federal Constitution that has a “looser” arrangement and more powers to the state.
The complexity of having two criminal justice systems must be thoroughly thought out.
Kelantan can move to establish two Royal Commissions of Inquiry (RCIs) with competent members in their respective fields, who may come from Malaysia or other countries.
The first RCI, should consist of judges, human rights lawyers, senior police officials and criminologists from Malaysia and other countries and be tasked to study the success or failure of the parallel criminal justice systems in Indonesia and Nigeria, and the success or failure of sharia criminal law in Aceh and the 12 sharia states in Nigeria in improving security, human rights and human dignity there.
The second RCI, should consist of constitutional experts, political scientists and representatives from Malaya, Sabah and Sarawak and be tasked to review our federalism and do the groundwork for a new Federal Constitution. It should take a longer period so that it may take on board any recommendation from the first RCI.
This second RCI should propose the method of electing a constitutional assembly – whereby at least one-third of the members must come from Sabah and Sarawak – to draft the new Federal Constitution, which must be approved later by a federation-wide referendum.
What Sabah and Sarawak should do
Sabah and Sarawak can and must work together with Kelantan to “loosen up” the Federation. We have suffered tremendously the peril of over-centralisation of power in Kuala Lumpur, covering issues from petroleum to cabotage.
What Sabahans and Sarawakians, Muslims and non-Muslims alike, can never accept a matter central to our federalism is now determined by a Malayan state and Kuala Lumpur, which acts more often like a Malayan central government than a Malaysian federal government.
Sabah and Sarawak are equal partners to Malaya while Kelantan is only a state within Malaya. Hence, allowing Kelantan unilaterally alter the nature of the entire Federation is an utmost insult to Sabah and Sarawak, raising the question if some Malayans actually see the Borneo states as subservient and voiceless colonies.
It is not enough for Sarawak Chief Minister Tan Sri Adenan Satem to reject hudud in Sarawak. Sarawakians and Sabahans do travel to, and some may work and live in Kelantan. They cannot be subject to a criminal justice system which they did not sign up to in 1963.
Both Adenan and Sabah Chief Minister Datuk Seri Musa Aman must instruct Barisan Nasional parliamentarians from Sabah and Sarawak to vote against any unilateral transfer of federal power from Kuala Lumpur to Kota Baru under Article 76A.
They cannot play second fiddle to Kelantan and betray the interests of Sabah, Sarawak and Malaysia. Instead, they should advocate for the formulation of a new Federal Constitution and invite Kelantan to join the cause.
Musa and Adenan must make clear that no deal that alters the nature of the Federation of Malaysia can be without the consent of Sabah and Sarawak.
There are three power centres in Malaysia: Kuala Lumpur, Kota Kinabalu and Kuching. For too long, too many Malayans have forgotten or never realised this.
It is time for Musa and Adenan to speak as patriotic Sarawakian and Sabahan, and they will have the entire Sabah and Sarawak solidly standing behind them. – May 16, 2014.
* Chan Foong Hin is the Sri Tanjung assemblyman in Sabah.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.
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