Kelantan allows public caning in a controversial amendment to state law. Is it time for Malaysians to unite and take a stand?
By Oliver Ward, edited by Anne Hwarng
The Kelantan State Legislative Assembly passed an amendment to the state law that allows Syariah offenders to be caned in public. This move has led to questions of whether the move is in breach of Malaysia’s constitution.
Although no details have been released, the law will likely apply to Muslims convicted of sodomy and alcohol consumption. Public canings will take place at the local stadium. Despite being passed by the State Legislative Assembly, the laws still require the consent of the Kelantan Sultan before they can be implemented.
Is the amendment legal under the Malaysian constitution?
Deputy Prime Minister, Dato’ Seri Dr Ahmad Zahid Hamidi, was very clear that the punishment of public caning would only be handed out to Muslims who had broken Syariah law.
The Federal Constitution in Malaysia calls for equality before the law. The introduction of a specific punishment for Muslims clearly goes against the constitution. The amendment effectively implements a dual justice system. Which would only lead to further polarisation and divisiveness in the region.
The Executive Director of Lawyers for Liberty expressed his concern for a two-tier penal system. “In the absence of a fair and just criminal justice system and access to competent legal representation, such harsh punishments will disproportionally affect women, the poorer and lower classes, and risk the likelihood of wrongful convictions.”
Ti Lian Ker, a member of the Malaysian Chinese Association, believes that this “rewriting of the legal system…spells a bleak future for the nation”.
There are still calls for an Islamic penal code to be applied to the whole country
The approval of the amendment in Kelantan is a major victory for the Pan-Malaysian Islamic Party (PAS), who wants to see an Islamic penal system applied to the whole country. Oppositions fear that the PAS will use the introduction of public caning in Kelantan as a platform to apply Islamic law across the country.
Harussani Zakaria, the Mufti of the state of Perak, would like to see that happen. “As Muslims, they must support all efforts to upgrade the Syariah courts and I, myself, hope for all Malay and Muslim MPs to unite in supporting this issue,” he said.
Will Malaysia adopt Islamic Law?
Mr Pandikar, Parliament Speaker, allowed the tabling of the controversial hudud bill for discussion in parliament in April, but it was deferred within a matter of hours. The bill would allow the application of Syariah law and punishments like public stoning across the country. This was PAS Leader, Abdul Hadi Awang’s fifth attempt to table the bill. Parliament will likely discuss the bill again later in this parliamentary sitting.
But will the bill ever be passed? It does have the support of Prime Minister, Najib Razak. Razak wanted to break up the opposition coalition, the Pakatan Rakyat (The People’s Alliance). He knew that by tabling a controversial bill like the hudud, he would be able to split the coalition. It worked and The People’s Alliance disintegrated following division over the bill.
As a result, Razak is able to portray himself as a “Defender of Islam” and will draw on the support of Malaysian Muslims and PAS supporters for the next election.
But, just because Razak’s support for the bill is purely strategic, does not mean that it will never come to pass. Minister Jamil Khir of United Malays National Organisation (UMNO), has been working with Hadi to table the bill and enlarge the power of Syariah courts. Having a powerful minister working for the bill is a big statement of UMNO’s intentions.
The DAP does not want to appear anti-Muslim or anti-Malay
Despite fiercely opposing the bill, the Democratic Action Party (DAP) have curbed their critical voice. Only one of their members, Zaid Ibrahim, attended a recent public demonstration of the bill.
Malaysia is creeping down a road where religion and state converge because nobody wants to risk appearing anti-Muslim before an election. Rhetoric around the bill from PAS has portrayed it as every Muslim’s duty to endorse it, a failure to do so is deemed anti-Islamic. To publicly appear anti-Islamic would seriously damage a party’s electability in Malaysia, where 61.3% of the population are Muslim.
Apathy is not an option, unity is
The public will also play a large part in the success or failure of the hudud bill. In February, Hadi was able to generate a turnout of 20,000 people at a rally in support of the bill. The simultaneous counter-rally against the bill could only muster a crowd of 200. Because the punishments would only apply to Muslims, non-Muslims are not engaged by the issue. This could play a big part in allowing the divisive bill to pass.
Contrary to popular belief, this political move will affect Muslims and non-Muslims alike. A dual legal system will drive a stake through the pluralism and social cohesion of the country and possibly create religious fissures and tensions. National unity is at stake, and Malaysians, Muslim or not, have to unite together to consider the implications such a religiously sensitive political move will have on the social stability of their nation. Is this a worthy price to pay?
