The debate surrounding Act 355 on syariah courts is not one between ideologies or based on some sort of failing freedom of religion. The commotion surrounding the proposed amendment to the syariah ruling is the result of hyped-up misunderstandings; falsehoods taken out of proportion.
Frankly, there are those with interests in this debate who would rather ride on confusion than clarity. For them, it serves to maintain the prejudice that anything involving an amendment to syariah law is a clear sign of Malaysia moving towards becoming an ultra-Islamic hardcore state. Perhaps, the saddest fact is that many lawmakers who oppose Act 355 push forward this misconception for the sake of spurring support for them, which has declined; an act of desperation at the cost of an uninformed and misled public.
So, here’s the truth. You don’t need to be a law expert to find out what Act 355 is. Contrary to what you have read, it is not a gateway to the hand-cutting, severe-punishment hudud. Act 355 was advanced in Parliament on May 26. The proposal seeks to expand the penalties of syariah law. As it stands, the maximum that one can be punished in a syariah court is a fine of RM5,000, three years’ jail and six strokes of the rotan. The amendment seeks to increase this penalty to an amount and time period deemed acceptable in Parliament proceedings. Nothing more.
No crime will be added under syariah courts to punish. No thief will have his or her hands chopped off, and there won’t be Gestapo-like police parading around on pick-up trucks to detain anyone deemed non-Islamic.
This type of amendment, for this specific court, had been tabled (and approved) in 1984. Back then, too, people were raving that it would lead to an extreme form of ancient, Middle Eastern-type governance. But, 32 years on, Malaysia remains a moderate nation that respects cultural and religious differences.
It should be made plain that non-Muslims will not be affected. This has been specified numerous times, even by the prime minister. As clearly penned out in Section II of Act 355, non-Muslims will never be held in the audience of syariah courts.
Act 355, Section II states: “The syariah courts, duly constituted under any law in a state and invested with jurisdiction over persons professing the religion of Islam… are hereby conferred jurisdiction in respect of offences against precepts of the religion of Islam…”.
Syariah courts don’t even deal with criminal cases, such as robbery and rape. All such cases, whether you are Muslim or not, fall under civil courts. Syariah courts deal with cases relating to marriage, property to children, close proximity, indecent dressing and abuses to the five pillars of Islam.
Even if hudud were to be advanced into law, multiple sections of the Constitution would have to be amended, including items in List II of the Ninth Schedule, where the jurisdiction of civil and syariah courts is clearly defined: “Islamic law… of a person professing the religion of Islam… relating to succession, testate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy guardianship, partitions…”. Article 76A of the Constitution would also have to be changed to allow an extension of the legislative powers of states to handle and include criminal cases in syariah courts. Article 8 on “Equality” would have to be amended to allow no discrimination of proceedings on the grounds of race, religion or descent to take place.
Quite devastatingly, there are those in the legislative process, as well as media, who spur a purposed misunderstanding of Act 355 to propel the prejudice that the law is hudud. For them, this prejudice is simpler to understand and popular, and their careers are thrown into the limelight.
Irresponsibly, these groups turn a blind eye to why we need to amend Act 355. It needs to be updated because it represents a moral guide for the Muslim community. While there is no compulsion in Islam, syariah courts do more than resolve Islamic legal issues; they are more than a last resort to settle family disputes, and represent an institution to safeguard Islamic values. Syariah courts act as a protection to guide our way, but never to stand in it.
It’s a slippery slope, as well. If we don’t update the system, its “outdatedness” will cater space for abuse that encourages greater crimes to be committed. From marital problems to how our youths carry themselves in public, the lack of this moral institution will open the floodgates for immoral conduct. Economically, the last time these penalties were updated was in 1984, a time when RM5,000 held a much greater dissuasion than it does today. The economies have changed, and rightfully so, our laws must adapt and be felt.
With the intellectual capacity that some of our (government and opposition) lawmakers present, it is surprising that they would join the bandwagon that has vastly misinterpreted Act 355. It is fearmongering that derails the progress of our nation. It promotes a politicking that feeds on the uninformed and fearful.
Khairul Azwan Harun is Umno Youth vice-chief and Supreme Council member