The NGO believes the “sins” implied in Act 355 should reside with the National Fatwa Council for inclusion in an “advisory” note only.
KOTA KINABALU: Aum Besai Dayak (ABD), an NGO in the Kelang Valley Region (KVR), sees the on-going public war of words on Act 355 as oblivious to certain “fundamentals”.
“These fundamentals clearly make Act 355 a non-starter for the Malaysian Parliament,” said an ABD spokeswoman in a telephone interview. “The debate must focus on these fundamentals. The public must not be misled on rule Of law in Malaysia.”
Rule BY law (men, God rule), she cautioned, was not law at all but “dictatorship”.
Again, according to jurisprudence, God cannot be a “source” in law, she said. “Law must have source to have authority, jurisdiction and power.”
Jurisprudence holds, said the spokeswoman, that law exists and has always existed, beyond statute and case law, and is based on common sense, universal values and the principles of natural justice.
Act 355, she reiterated, falls apart in jurisprudence as “not law”. “The Federal Constitution and the Malaysian Parliament are about law and the rule of law,” said the spokeswoman.
She believes the “sins” implied in Act 355 should reside with the National Fatwa Council for inclusion in an “advisory” note only.
Act 355 was ostensibly designed to “enhance the status of the Shariah courts, by increasing their sentencing powers”.
Elsewhere, she said, Islamic jurisprudence itself holds that Islamic matters must not be tabled before a secular assembly.
Secondly, Islamic matters must not allow input and/or voting by non-Muslims. “It’s forbidden for non-believers (kafir) to pontificate sanctimoniously on Islamic matters,” she said. “It’s haram (prohibited) for non-Muslims to be involved in Islamic matters.”
Act 355 cannot therefore be brought before the Malaysian Parliament which has 87 non-Muslim lawmakers, said the spokeswoman.
She was disclosing that ABD had researched the subject matter extensively and also sought subject matter expert opinion on Act 355.
Thirdly, the Malaysian Parliament is subject to the Federal Constitution, a secular document, and not to the Quran. “So, again, the question of tabling Act 355 in the Malaysian Parliament, does not arise,” said the spokeswoman.
The bottomline is what’s law, when it’s stated the Federal Constitution is based on rule of law.
“In our system of government, the Federal Constitution is the supreme law of the land,” said the spokeswoman. “The Malaysian Parliament is subject to the Federal Constitution, and its (parliament’s) sovereignty confined to its five year term.”
No Parliament can be bound by a previous Parliament or bind a future Parliament, she added. “The Act 355 considered by a previous Parliament or by previous Parliaments can be discarded, solely based on Islamic jurisprudence.”
The spokeswoman went on to say the “sins” implied, the thrust of Act 355, cannot be criminalised, and if they can be done so, they cannot be subject to disproportionate punishment. “Jurisprudence, in the secular tradition, holds there must be proportionality in punishment.”
Fining a person RM100, 000, for example, jailing anyone for 30 years and amputating their limbs, if enforced by the Shariah courts, are “disproportionate” according to jurisprudence, reminded the spokeswoman. “Again, they violate rule of law.”