Sharia RUU355 is constitutional

 |Jan 15, 2017
PAS President Abdul Hadi Awang.
PAS President Abdul Hadi Awang.

There are many from both sides of the political divide (Barisan Nasional as well as Pakatan Harapan) who argue that Act355 or RUU355 is unconstitutional.

That is actually wrong and I think those who say so are doing it intentionally so as to mislead Malaysians, many who have never read Malaysia’s Federal Constitution and do not know what it says.

Furthermore, considering many Malaysians go to Chinese and/or Tamil schools, these people would not understand the constitution even if they did read it anyway, which is written in English and Bahasa Malaysia.

When I write about historical matters I attract many nasty comments that say who cares about the past, it is the future that matters.

But that is just it.

When we are ignorant about the past we tend to repeat the mistakes of the past and/or would not know how to plan for the future.

So, knowing and understanding the past is very important to be able to understand what decisions you need to make now and for the good of the future.

Party presidents Mah Siew Keong of Gerakan (left) and Liow Tiong Lai of MCA.
Party presidents Mah Siew Keong of Gerakan (left) and Liow Tiong Lai of MCA.

Let us focus on just one matter, Islam and the sharia.

How did Malaysia come to have a dual-legal system of both sharia and common laws existing or co-existing side-by-side?

Why has it now turned into a mess, as some people would like to believe (whereas it seemed to have worked okay in the past — meaning co-existing side-by-side in harmony)?

Yes, contrary to what many who oppose the RUU355 say (they say they oppose the Sharia amendments because they do not wish to see a dual-legal system in Malaysia), in truth the dual-legal system already existed long before Malaysia was created.

So this argument (that they oppose the sharia amendments because they do not wish to see a dual-legal system in Malaysia) is utter nonsense.

The dual-legal system already exists and existed since long ago.

The second nonsense is that they say the RUU355 violated the Federal Constitution of Malaysia.

This is, yet again, a lie and meant to confuse those people who have never read the constitution or would not understand it even if they did read it (since their English and Bahasa Malaysia is substandard due to their mother-tongue education).

Now, to understand this we need to study the history of Malaya.

In the beginning this whole region was called the Malay Archipelago. Refer to the three maps below dated 1498-1850, 1880 and 1901 to see that it was called the Malay Archipelago for a very long time.

Part of the Malay Archipelago was ruled by the Dutch, another part by the British but from India, and another part by Spain.

Pakatan Harapan has spin tales to confuse Malaysians on RUU355.
Pakatan Harapan has spin tales to confuse Malaysians on RUU355.

Malaysia (which did not become Malaysia until 1963) was not yet a federation like it is today.

Penang, Melaka and Singapore were called the Straits Settlements and were under direct British rule.

Selangor, Negeri Sembilan, Pahang and Perak had indirect British rule and were called the Federated Malay States.

In these states the sultans ruled.

However, one-by-one, over a period of time, the rulers accepted British advisors to advice them on certain matters (religion, customs and traditions not included though).

Perlis, Kedah, Terengganu and Kelantan were Thai protectorates.

Johor, which was once part of the Riau Empire, was independent.

Then in 1909, Thailand handed Perlis, Kedah, Terengganu and Kelantan over to the British through a treaty signed in Bangkok (the Bangkok Treaty of 1909) and they became the Unfederated Malay States.

Johor did not officially join the Unfederated Malay states until 1914 when they agreed to the appointment of a British advisor to the Sultan of Johor.

Malays protesting against the formation of Malayan Union proposed by the British.
Malays protesting against the formation of Malayan Union proposed by the British.

Over those years what could by then be called British Malaya prospered.

But then the cost to run the states needed to be taken care of and British India did not see the importance of British Malaya – so it refused to support it financially.

To be able to earn money the British started developing Singapore in joint venture with the Temenggong and they invited the Straits Chinese from Malacca to move their operations to Singapore and invest in that island.

So it was the British, the Temenggong and the Malacca Straits Chinese (many who did not even speak Chinese and dressed and acted just like Malays) who actually developed Singapore.

They did so because the British needed money to run the states and this was the only way the British could earn tax to finance the government.

Then WWII broke out and the Japanese invaded British Malaya in 1941.

In 1945 the British came back and in 1946 they formed the Malayan Union.

Under the Malayan Union, the Malay Rulers would lose much of their powers so the Malays opposed this move.

In 1948 the British dropped the Malayan Union and changed it to Persekutuan Tanah Melayu or the Federation of Malaya.

Signing of Federation of Malaya Agreement in August, 1957.
Signing of Federation of Malaya Agreement in August, 1957.

Now, under the Federation of 1948, it was clearly spelt out that the federal government would be in charge of certain matters (such as defence, security, foreign policy, etc.) while the states would retain certain powers (such as water, natural resources, land matters, religion, culture, traditions, etc.).

When Malaya was given independence in 1957, the Federation Agreement did not change (as also when Malaysia was created in 1963).

The States still had power over its water, natural resources, land, religion, culture, traditions, and so on.

That was why in 1972 when it discovered oil in Terengganu, the federal government was forced to pass the Petroleum Development Act (1974).

This was an Act of Parliament to allow the government to nationalise oil and gas.

If not then 100% of the oil and gas would belong to Terengganu.

So you see, for the federal government to ‘rampas kuasa’ the oil and gas from the states, they needed to pass an Act of Parliament nationalising the oil and gas.

If the federal government wants to ‘rampas kuasa’ water from the states they also need to do the same.

If they want to ‘federalise’ Islam and ‘rampas kuasa’ Islam from the states they would also need to do the same.

An Act of Parliament needs to be passed to take away the powers of the state rulers over Islam and transfer that power over to the federal government.

So you see, oil and gas used to belong to the states until 1974 when an Act of Parliament was passed.

Power over religion, however, still belongs to the states because no such Act of Parliament was passed.

Therefore the states are free to implement Islam they way they see fit and that is why we see that there were different systems and different rules for each state.

There is no ‘federal consistency’.

The rulers of each state has the final say on what happens.

Former Kelantan Menteri Besar, the late Nik Abdul Aziz Nik Mat.
Former Kelantan Menteri Besar, the late Nik Abdul Aziz Nik Mat.

So when the critics of RUU355 say that it was unconstitutional, that was not true.

They are lying to you and since you are ignorant you will believe this lie.

The only thing is when there are already federal laws in existence then the state can pass but cannot implement state laws that contradicted federal laws.

That was why the Kelantan Assembly passed amendments to the state sharia laws in 1993 while the Terengganu Assembly did the same in 2001.

But these laws cannot be implemented until Parliament approves them and since Parliament did not approve them yet they were still in KIV.

So there is nothing to stop the states from passing new sharia laws or from amending old sharia laws.

The only snag would be in the event of conflicting laws then federal laws take precedence over state laws — unless Parliament approves those conflicting state laws.

Kelantan Menteri Besar Nik Aziz Nik Mat pushed for the amendments to the sharia in 1993 [Shariah Criminal Code (II) Enactment (Kelantan) 1993], which is what RUU355 is all about

This is what RUU355 is all about.

Whether Parliament approves those amendments is another issue altogether.

But for the Kelantan Assembly to pass those laws is no issue.

Kelantan has every right to pass those laws.

It only has no right to implement them unless Parliament says it can.

But if those laws are not in conflict with federal laws, then the state can do whatever it likes and Parliament has no say in the matter.

Can you now see how you have been misled and lied to?

Sharia Court Malaysia.
Sharia Court Malaysia.

So, when someone talks to you about the constitution, first of all ask that person whether he or she was talking about the federal or state constitution and which article in the constitution he or she is talking about.

Now, another matter to note is that when the states agreed to join the federation in 1948, it was based on an agreement that water, natural resources, land matters, religion, culture, traditions, and so on will remain under state powers.

So, if the federal government wishes to abolish this agreement then the states can consider leaving Malaysia since the agreement has been abolished.

This is the same argument that the Sabah and Sarawak ‘secessionists’ are using — that the federal government had violated the 20/18-Point Agreement so that means Sabah and Sarawak can leave Malaysia.

Just one matter alone (the 5% Oil Royalty) is in itself a breach of agreement.

Salleh Abbas, the chief justice (that time lord president) who drafted the Petroleum Development Act 1974 can confirm this.

So, if the federal government interferes in Islam and the sharia, which are state matters, then this is in violation of the federation agreement and the states can leave Malaysia. – Malaysia Today

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Raja Petra Kamarudin or RPK, cousin to the Selangor Sultan, is one of Malaysia's earliest online 'citizen journalists'. He started his website in 1995 before the internet 'explosion' triggered by the Reformasi movement in September 1998. Malaysia Today was launched as a blog in August 2004 and is one of the few pioneer blogs still active and posting articles on a daily basis 24-7. RPK, 66 years old, has been writing since 1990.