In 1948 the Federated and Unfederated Malay States agreed to join the Federation of Malaya as long as Islam, and some other matters, remain under the states and are not ‘federalised’. 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 just like Singapore did.
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.
The opposition is lying to you about RUU355
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? And 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 violates 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).
Abdul Hadi Awang is actually quite a shrewd politician and knows what he is doing, contrary to what many may believe
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.
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. And Johor, which was once part of the Riau Empire, was independent.
In 1909 Kelantan was transferred from Thailand to Britain and Sharia laws in Kelantan existed even then and came directly under the Sultan
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.
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 they 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 Melaka to move their operations to Singapore and invest in that island.
So it was the British, the Temenggong and the Melaka Straits Chinese (many who did not even speak Chinese and dressed and acted just like Malays) who actually developed Singapore. And 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.
Protest against the Malayan Union
In 1948 the British dropped the Malayan Union and changed it to Persekutuan Tanah Melayu or the Federation of Malaya. 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 they 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. And 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.
Sultan Hisamuddin Alam Shah Ibni Al-Marhum Sultan Alaeddin Sulaiman Shah, Selangor Sultan 1938-1960, brought Selangor into the Federation in 1948 but retained powers over Islam
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 are different systems and different rules for each State. There is no ‘federal consistency’. And the Rulers of each state has the final say on what happens.
So when the critics of RUU355 say that it is unconstitutional that is 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 contradict Federal laws. And that was why the Kelantan State Assembly passed amendments to the State Sharia Laws in 1993 while the Terengganu State 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 are 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
And this is what RUU355 is all about. Whether Parliament approves those amendments is another issue altogether. But for the Kelantan State Assembly to pass those laws is no issue. Kelantan has every right to pass those laws. They only have no right to implement them unless Parliament says they 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? So, when someone talks to you about the Constitution, first of all ask that person whether he or she is talking about the Federal Constitution or the 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 is now abolished.
This is the same argument that the Sabah and Sarawak ‘secessionists’ are using — that the Federal Government has 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. Tun 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.
Malay Archipelago 1498-1850
Malay Archipelago 1880
Malay Archipelago 1901
Raja Petra Kamarudin