Dr Dzulkifli's piece on Lina Joy

In yesterday's opinion piece in Malaysiakini, Dr Dzulkifli Ahmad, a director of PAS Research Centre, attempted to give a balanced and level headed angle to the controversial Lina Joy decision made recently in the Federal Court. Overall I think he has succeeded in putting forward the views of conservative Muslims in a level headed and well argued manner. However, one thing I was disappointed with was that he seem to have failed to tackle an issue which his article brings forth, which is the constitutionality of various state Syariah enactments, specifically with regards to the sensitive issue of apostasy. In so doing, while at the same time throwing the ball back to the Umno government's court, Dr Dzulkifli unfortunately has committed the same problem which he pointed out in the early part of his article, which is "for failing to take the bull by the horn".

I don't have much disagreement with his argument of the need for apostasy to be heard and dealt with in the Syariah courts. But he brought up an interesting part about how the State legislative assemblies' right to enact Islamic related enactments is conferred by the Federal Constitution under List II of the Ninth Schedule, as well as a federal act (The Syariah Courts Act (Criminal Jurisdiction) 1965) which gives power to the same assemblies to enact criminal Islamic laws. Such criminal laws however are bound by the ceiling set forth in the act - imprisonment not exceeding 3 years, fine not exceeding RM5,000, whipping not exceeding 6 strokes or combination of these. Such limitations on what punishment criminal Islamic laws can have and be enacted by state legislative assemblies would mean that in the context of our nation's status where the supreme law of the land is the Federal Constitution, the limits and boundaries of what Syariah enactments could be enacted, as well as the punishments meted out, do exist and are provided for by civil law, as laid down by the Constitution as well as related Federal Acts. This was, as I understand it, the reason why Zaid Ibrahim (the Kota Baru MP) brought the Terengganu PAS State Government to court in 2003 over the latter's attempt in enacting hudud enactments which clearly were beyond the set boundaries of the Constitution and Federal Acts. In effect, the Terengganu Syariah Criminal Offences (Hudud and Qisas) Enactment was ultra vires the Constituion.

Since it is the case where limits and boundaries on what can and cannot be enacted by the state legislative assemblies with regards to Syariah enactments exists, it necessarily follows also that the issue of apostasy with respect to Syariah enactments (or lack of it, as is the case with the Federal Territory) in the various states should not be treated any differently. To "take the bull by the horn" and arrive at a necessary solution to this ever pressing and stick issue, the hard question of whether the punishment (or silence) prescribed to the crime of apostasy, within the context of our existing system of Syariah courts and enactments, have in fact not exceeded the limits and boundaries set, particularly with respect to Article 11 of the Federal Constitution regarding the right of every person in the Federation to profess and practise his religion. This question is important as it will determine if existing state enactments on apostasy is in fact ultra vires the Federal Constitution, the same basis for Zaid's suit against the Terengganu PAS State Government as well as the fact that that Enactment never get to see the light of day.

There have been some attempts in the blogosphere to discuss the Lina Joy controversy from this angle, but unfortunately it is still very limited, and thus far no attempts have been made to bring it out to the open for more detailed discussion. I think it is really important to tackle the issue from this angle as all other attempts so far has not been fruitful. Even more important is that this question will really determine if Malaysia still uphold the supremacy of the Federal Constitution as per what our founding fathers have envisioned, or it is otherwise.