Segment II of this article will look at Section 54 of the Enakmen Kesalahan Syariah (Negeri Melaka) 1991 (En. 6/91) and certain policy considerations .
Section 54 of Enakmen Kesalahan Syariah (Negeri Melaka) 1991 (En. 6/91) and ‘Personal Law’
Let us consider Section 54 of the enactment. I shall firstly reproduce it here in full:
“Seksyen 54. Hamil di luar nikah.
Seseorang perempuan yang didapati hamil atau melahirkan anak di luar nikah adalah merupakan suatu kesalahan dan apabila disabitkan kesalahan boleh dikenakan hukuman denda tidak melebihi daripada tiga ribu ringgit atau dipenjara selama tempoh tidak melebihi dua puluh empat bulan atau kedua-duanya sekali.”
Section 54 is passed by virtue of the Ninth Schedule List II of the FC which allows for State Assemblies to create offences and the punishment of those offences by persons professing the religion of Islam against precepts of that religion.
Section 54, in my contention would very clearly be Criminal law, as it is found within the ‘Syariah Criminal Offences’ of the State of Melaka. It is not, in my opinion, ‘Islamic Personal Law’, as might be argued by some, for if it was then it ought to be within the relevant Islamic Family Law Enactment of the State of Melaka.
Further, what lends credence to this is the fact that ‘Islamic Personal Law’ is elaborated on in List I Item 4(e)(ii) of the FC as being laws relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate. This, I submit, is also the legal understanding of the phrase ‘Personal Law’ and it does not entail a criminal sanction of any kind. Thus, Section 54 would not be ‘Personal Law’.
Precepts of the religion of Islam
One might ask, what are ‘precepts of the religion of Islam’? That would be up to the determination of the relevant State legislators after, presumably, a series of rigorous dialogues with the Office of the Legal Adviser of Melaka and Islamic officials and Islamic bodies namely; the Mufti, Jabatan Agama Islam Melaka, Majlis Agama Islam Melaka, His Royal Highness, Islamic NGOs, ulamas and jurists of as much schools of thought and theological backgrounds as possible (“the relevant parties”).
This is a very interesting process for we see an interplay between Islam and secular lawmaking under the FC. It is a very unique ‘coming-together’. It seeks to extract the relevant Islamic precepts under the guidance and wisdom of the relevant parties with the participation of the Office of the Legal Adviser of Melaka and the State legislators to see it passed consistently with the fundamental liberties enshrined under the FC. This is an extraordinary aspect about lawmaking within the States in Malaysia. It is in line with what Lord President Salleh Abbas (as he then was) said in Che Omar Bin Che Soh v. Public Prosecutor  2 MLJ 55, when referring to the state of affairs after the British had arrived in Malaya:
“The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler’s power and sovereignty. The ruler ceased to be regarded as God’s vicegerent on earth but regarded as a sovereign within his territory. The concept of sovereignty ascribed to humans is alien to Islamic religion because in Islam, sovereignty belongs to God alone. By ascribing sovereignty to the ruler, i.e. to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat. .
. .the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.”
Of course, whether this ‘coming-together’ is indeed being done by the State legislators and the Office of the Legal Adviser of Melaka with the relevant parties is questionable. Why is it an unconstitutional law like Section 54 (and its equivalent in other States) continue to remain in the law books? And most importantly, how did it even make its way into the law books?
Clearly, the State legislatures in this country are not functioning as it ought to. This must be cured immediately through active advocacy by civil society groups, the Bar Council and the Federal Government.
Malaysia and Islam
Malaysia, as a country with a Muslim majority, has received a lot of attention from the rest of the world, particularly Europe, as well as a lot of compliments from Islamic nations. This, I would think, is driven by the fact that we were once extremely pluralistic, tolerant and broadminded in our ways.
I think what makes this country noteworthy is the fact that, since our Independence, we have tried to sow Islam in accordance with the values, culture and principles of the people of Malaysia whether they be Muslims or not. It is part of our shared heritage; our diversity.
But of course, that slowly began to change during the latter half of the Mahathir administration where, in my opinion, Islam was arrogated by politicians and used as a trump card against Western nations and their policies.
In wanting to adopt an “identity” predicated on “eastern values”, the Mahathir administration had sought to make Malaysia the very anti-thesis of a ‘Western liberal democracy’; curtailing civil liberties, removing political dissidents and policing morality, thoughts and behavior among Muslims – all in an effort to cultivate a “holier than thou” disposition when compared to the “greedy”, “ignorant” and “arrogant” Western nations.
It is most unfortunate that the fallout of this vendetta against the West was the resultant spiritual penury and intellectual poverty among the Malaysian population.
Noticing this fallout, the Abdullah Ahmad Badawi administration began sowing the seeds of Islam Hadhari (‘Civilizational Islam’), a progressive Islam, whose principles included ‘Freedom and independence to the people’ and ‘Protection of the rights of minority groups and women’.
Sadly, in the quest towards establishing this moderate model of Islam, the Badawi administration was inundated with allegations of corruption, political scandals and internal politicking. Islam Hadhari, from where I see it, was neither successful nor fruitful as an initiative. We are now in an unpredictable state of limbo where fervent religious extremists continue to utilize religious demagogy to exert pressure unto the lives of Muslims in this country; attempting to police morality, thoughts and behavior under the guise of divine authority. This is a very dangerous and highly volatile situation. It will ruin all the ideals this country was built upon; our pluralism, tolerance and broadmindedness will dissipate.
We must always remember that the Federal Constitution is our final compass and regardless of ones religion or ethnicity, no one must be subjected to any law that violates the all-pervasive fundamental liberties enshrined within the Constitution.
Conclusion of Segment II
I must add, as a legal point, that Article 74(3) of the FC states that the power of the relevant State Assemblies to make laws must be subject to the conditions or restrictions imposed by the FC and that the Civil courts are at liberty to assess the constitutionality of such laws i.e. State Enactments (Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor  5 MLJ 101 @ Para 53 & 54).
In conclusion, when it comes to State enacted Islamic laws, especially so Syariah criminal laws, both State legislators and the relevant parties must work together for only then will there be no conflicts or inconsistencies with the FC thereby offering all Muslims in this country adequate protection under the State Islamic Laws and the Federal Constitution.
I shall be dealing with the unconstitutionality of Section 54 in the next segment of this article.