— Civil Society Organisations of Sabah and Sarawak
The Malay Mail Online
April 8, 2015

APRIL 8 — We — Civil Society Organisations of Sabah and Sarawak — hereby call for a thorough renegotiation of the Federal Constitution if Kelantan insists to enforce its Shariah Criminal Code II (1993) 2015.

We solemnly hold the following positions:

1. In forming Malaysia with Malaya and Singapore in 1963, Sabah and Sarawak signed up for a secular federation, not a theocratic one where any religious criminal justice system may be in force in any part of the Federation.

2. Religious freedom was amongst the top demands of Sabah and Sarawak in the Malaysia negotiations which produced the Inter-Governmental Committee Report and eventually the 1963 Malaysia Agreement. Sabah and Sarawak would not have been part of Malaysia if Shariah criminal law was an item in the negotiation.

3. Secular justice system on crimes as a federal jurisdiction is part of the entire constitutional package embodied in the Ninth Schedule of the Federal Constitution. Any fundamental change to this packaged deal requires a thorough renegotiation of the Federal Constitution.

4. Sabahans and Sarawakians are legitimate stakeholders in the Kelantan Shariah Criminal Code II (1993) 2015 for if the enactment comes into force, these are amongst the consequences:

a. If Sabahans and Sarawakians — regardless of faith — fell prey to thefts, robberies, homicides and bodily harms committed by Muslims, their cases will be tried in the Shariah court, and not Common law Court. [Section 2 of the Code]

b. Sabahans and Sarawakians will not have full testifying competence in Shariah Court if they are non-Muslim, women, under-aged Muslims or Muslims with questionable religious conducts. [Section 41 of the Code, and Sections 83 and 86 of Kelantan Evidence Enactment of Shariah Court 2002]

c. Sabahan and Sarawakian Muslims are accused of stealing or robbing of anything worth more than 4.45 gram of gold (about RM 620 at current price), they will be tried in Shariah Court and may face the punishment of amputation. [Sections 6-11 of the Code]

d. Sabahan and Sarawakian Muslims who are convicted of adultery or sodomy in Kelantan may face death penalty by way of stoning. [Sections 12-15]

e. Sabahan and Sarawakian Muslims who are convicted of drinking in Kelantan may face 40 to 80 lashes. [Section 22]

f. Sabahan and Sarawakian Muslims who are convicted of heresy [irtidad or riddah] may face death penalty and forfeiture of all properties. [Section 23]

g. Murderers of Sabahans and Sarawakians will escape death penalty when the prosecution cannot produce testimonies by two good adult male Muslims.

5. The first and foremost issue in Kelantan’s claim to enforce Shariah criminal law is not democracy, but sovereignty. As a sovereign nation, Brunei can enforce Shariah criminal law even though it is not a democracy. Even if the Code has been democratically deliberated, rather than concealed from prior public scrutiny, Kelantan has no constitutional competence to enforce the Code because Kelantan is not a sovereign country like Brunei. Sabah and Sarawak objecting to the Code is therefore not infringing Kelantanese’ democratic aspiration.

6. If Kelantan is given the power over criminal justice under Article 76A — whether through a Government Bill or Private Member’s Bill — it will be a constitutional coup against the 1963 Malaysia Agreement, no less than advocacy of separatism. By skirting the need of a two-third parliamentary majority to amend the Ninth Schedule, a bill under Article 76A undermines the veto potential of the 57 parliamentarians from East Malaysia. It will effectively not just write off the status of Sabah and Sarawak as equal partners of Malaya, but even places Sabah and Sarawak as constitutionally inferior to one of Malaya’s states.

7. If Kelantan insists to enforce its Shariah Criminal Code, then Malaysia needs to have a new Federal Constitution. To prevent a constitutional crisis that erodes the moral basis of Malaysia as a nation, we call upon the Federal Government or the Sabah and Sarawak state governments to convene a Malaysia Summit attended by all lawmakers and executive branch at the Federal and State levels to deliberate on a new Federal constitutional arrangement, whereby Sabah and Sarawak may have other rights devolved if Kelantan were to have its own criminal justice system.