This article will be divided into four segments. Each segment will be published 2 days apart for ease of digestion. Readers can only comment after the fourth and final segment is published.
The first segment (I) shall deal with the distribution of legislative powers between the Federal Legislature and the State Legislatures in Malaysia. The second (II) will consider the legal source of the issue at hand while briefly touching on certain policy considerations. The third (III) will look into the constitutional aspects of the issue at hand. The fourth (IV) will assess Malaysia’s representations to the world, its international human rights obligations and the legitimate expectation of the people of Malaysia as well as other ancillary matters.
I
The Issue
I was scrolling through the papers a few weeks back when I stumbled across an interesting piece of news. It was a news report published in the The Star on the 2nd of December 2009 titled ‘Newlywed who gave birth faces legal action’. This news report can also be found online.
The report states that a 21-year-old woman who gave birth to a baby girl 24 hours after her Akad Nikah was approached by a group of religious enforcement officers from the Jabatan Agama Islam Melaka (JAIM), while she was still in the Malacca Hospital, to take statements from her and her 28-year-old partner.
The JAIM chief enforcement officer Rahimin Bani said that the woman would be charged under Section 54 of the Enakmen Kesalahan Syariah (Negeri Melaka) 1991 (En. 6/91) (“the enactment”) for being pregnant out of wedlock and her partner shall be charged under section 55 of the same Enactment for being an accomplice in forbidden sexual intercourse. Anyone found guilty for either offence is liable to a fine not exceeding three thousand ringgit (RM 3,000) or to imprisonment for a term not exceeding twenty four (24) months or to both.
I found all of this very disturbing indeed. For here you have a piece of law, section 54 of the enactment that is essentially criminalizing the conception of a human being and imposing sanctions upon a woman for exercising her reproductive functions. In other words, what the Malacca State Government is saying is “As a Woman you have committed a crime by bringing another life into the Earth.”
Section 54 of the enactment, a State enacted law, is in violation of Article 5 and Article 8 of the Federal Constitution. The fundamental liberties of the woman in this case are being trampled on.
But before we go into a discussion on fundamental liberties, there is much confusion among the public as to the source of power for Federal and State Law, so I shall dedicate this first (I) segment of this Article to this nebulous area.
Federalism
Malaysia is a country based on the Federal model of government. Malaysia is a Federation which consists of 13 States and 3 Federal Territories.
Briefly put, in a Federal model, there is a central governing authority that makes all the big decisions that affect all citizens of Malaysia as well as the country. The source of Federal legislative power resides in the Malaysian Parliament. The laws passed will be called Federal Laws.
There are then 13 States which have their own respective governments which are led by chief Ministers and whose source of State legislative power resides in the State Assemblies (Dewan Undangan Negeri). The laws passed will be called State Laws.
The Federal Constitution in the Ninth Schedule provides the subject-matter that both the Malaysian Parliament and the State Assemblies can make laws on.
Let’s have a look at some examples: In List I of the Ninth Schedule, the Malaysian Parliament can make laws on external affairs (international treaties, conventions and agreements), defence (military and national service), internal security (prisons and police), civil and criminal law which affect all regardless of race or religion, citizenship, the machinery of Government, finance, education, medicine, labour, publications, censorship, tourism, communication, transport, trade, commerce and industry among many others.
A cursory glance at this list is enough to convince anyone that these are big areas of socio-political life that have a huge bearing on the life and liberty of Malaysians and the structure and direction of this country.
Now, let’s have a look at some examples of the State’s power: In List II of the Ninth Schedule, the respective State Assemblies are able to make laws on land matters (Malay reservations, permits and licences, transfers, land tenure and acquisition), agriculture, forestry, municipal corporations, local services (burial grounds, markets, cinemas, etc.), works and water (roads and bridges), libraries, museums, the machinery of State Government and Islamic law and personal and family law of persons professing the religion of Islam.
The list, as one would notice, is highly localized in nature. It caters to the community, history and culture of the respective States. It seeks to afford the State Assemblies power to make laws that are most expedient and necessary for the citizens of that State.
There is also a List III where both Parliament and State Assemblies have powers to make laws on but a discussion on List III will not be necessary for this article.
Thus, unless you live in Putrajaya, Kuala Lumpur or Labuan (the 3 Federal Territories), everyone is both a citizen of a State and a citizen of the Federation.
It must be stated at this point that the Federal Constitution is the supreme law of the Federation and any law that is enacted which is inconsistent with the Federal Constitution shall be void (Article 4). The word ‘law’ after the word ‘any’ in Article 4 relates not only to Federal Laws but also State Laws (Article 160(2)).
What this means is that the States cannot make laws which are inconsistent with the Federal Constitution (FC). State Laws must themselves be compatible with the fundamental liberties enshrined in the Constitution.
Let’s have a quick glimpse at what our fundamental liberties are; life and personal liberty (Article 5), prohibition of slavery and forced labour (Article 6), protection against double jeopardy (Article 7), right to equality (Article 8), freedom of movement (Article 9) freedom of speech and expression, assembly and association (Article 10), freedom of religion (Article 11), rights in respect of education (Article 12) and right to property (Article 13).
These gems (Article 5-13) are guaranteed to all who reside in this Federation regardless of ethnicity, religion or State. These are the gifts inherited by all Malaysians by the mere fact that they are Malaysians. We elect our legislators into power to ensure that they will protect these liberties of ours and in the event they falter, the judiciary must rise, without fear or favour, to protect those who have been discriminated.
Conclusion of Segment I
I have laid out the distribution of legislative powers between the Federal Legislature and the State Legislatures in a nutshell. I shall go on to consider Section 54 of the Enactment in greater detail in the second (II) segment of this article.
As an addendum to Part I, I must add a recent report was also published in the Star on the 2nd of January 2010 involving a woman who sat on a 20cm-wide ledge outside a window on the fourth floor of a hotel to evade being caught during a Pahang Religious Department raid for Khalwat. The report can be found online.
This is indeed a pressing issue riddled with many questions for the consideration of civil society.
Are we to allow officials from the State to violate the privacy of the citizens of Malaysia? Do ‘raids’ and measures such as these truly serve the purpose of curbing immorality? Are there other more humane and thoughtful ways of dealing with immorality e.g. advising, counseling and raising awareness? In fact, is sex between consenting adults even an ‘immorality’?
Will charging people for Khalwat really solve the problem? Is there even a problem that needs to be solved? Should sex between consenting adults be an issue for the determination of States? Should the State be concerned with what people do with their bodies? Is a person’s personal thoughts, expression and sexuality a matter for someone else i.e. legislators or judicial officers, to decide?
Should we be policing what people do to each other consensually if they pose no direct harm to society? What moral superiority do we pose to make moral judgments on another human being? Are we to punish people for their religious sins now or should they be punished in the afterlife? Aren’t we all such sinners that we ought to just leave punishments to God?
It is also no place for the non-Muslims in this country to argue “Ini bukan aku punya pasal sebab aku bukan Islam”. We are all children of this Federation. As long as one of us is hurt, we must stand up for that person.
Neither is it an argument for the Muslims to say “Ini hal Islam, bukan Islam jangan masuk campur”. As long as a person is being treated unjustly and inhumanely by the law, the people of this Federation must rise against such unjust laws.
It is wise to remember, the battle against Slavery and Racism were won because all regardless of colour, ethnicity or religion stood up against it.
In the chilling words of Martin Niemoller (1892 – 1984) during the rise of the Nazi’s:
“In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist; And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist; And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew; And then… they came for me… And by that time there was no one left to speak up.”