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哈迪阿旺所提的355法令修正案到底是什么?

09/03/2017

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哈迪阿旺所提的355法令修正案到底是什么?

该法案旨于加强1965年伊斯兰教法庭(刑事权限)法令(355法令)的刑罚。因此,严格来说,它不是伊刑法。

那为什么又有反对意见呢?

如果它被允许修改,可能导致不平等和不公正的问题。 也影响经济,吓跑外国投资者,这种情形在世界各地屡见不鲜。 更重要的是,它与最高法律 –联邦宪法不一致。

修正案已在上次国会提呈,想把刑罚提高到30年监禁、100次鞭笞和10万令吉罚款。

有许多原因说明此法不可取。在刑法上,各州执法当局对违法者的权力应用必须统一。

不过,哈迪的修正案并没有强调这一点。每个州可自行选择刑罚。

现有刑罚有三种:鞭笞、罚款和监禁,每种刑罚的上限都有明文规定,所有州都一样。相比之下,哈迪要修的,其实是倒退之举。

虽然,要提高现有的3-6-5刑罚上限有其合理之处,但一些上限和条款必需明文规定,以免有违宪之误。

有些政客向公众打保单,说修正案只是要强化伊斯兰法庭,无关伊刑法。

这是天大的误导。实际上,它是在为伊刑法开路。首先,我们必须先搞清楚,伊斯兰刑事司法制度到底是如何在马来西亚操作的。所有形式的伊斯兰法律,包括伊斯兰法庭的成立,都是源自《联邦宪法》州事务表(State List)第1项目。

接着,为了将这种管辖权授予伊斯兰法庭,国会颁布了该法令。 简而言之,国会凭其智慧赋予伊斯兰法庭权限审判所有违反伊斯兰教规的罪行,但惩罚的轻重必须在国会规定的限度内。

这里有两个概念:罪行与惩罚,两者之间有个重要的区别。

国会只是制定惩罚的界限,至于罪行范围则是由各州州议会制定,这是该法令的主要目的。国会只提惩罚,没明文规定那些罪行伊斯兰法庭有权管辖。

换句话说,只要是罪行的惩罚在国会规定的界限内,州议会可依据州事务表第1项目,制定任何违反伊斯兰教规的罪行范围。

修正案不需特地使用“伊刑法”(Hudud)或其他相关罪行的字眼。只要它提供的惩罚符合伊刑法,那州议会就可自由制定伊刑法罪行。

如上所述,我认为,在任何情况下,制定这种罪行都是违宪的。

修正案不需提伊刑法,它都与伊斯兰党伊刑法有关。

它是在2015年我们的法律挑战被驳回后,巧妙地计划和起草的。

所以,其动机含义再清楚不过。该修正案就算是修改后再提呈,仍然让伊斯兰党伊刑法得以实施。

再者,它不单只限于吉兰丹。每个州都会受影响。伊斯兰法庭的权限若伸延到这种程度,将动摇联邦宪法的基本结构。

刑法是联邦宪法事务表下的事。 马来西亚以联邦体制立国,联邦政府比州政府具有更大的权力。 正因如此,两者若有不一致之处,必须以联邦宪法为重。 如果伊斯兰教法庭被赋予这么广泛的权力(在鞭刑方面其权力甚至比民事法庭更大),形同不顺从国会在刑法问题上所拥有的权力。 我们必须记住,民事法庭在这方面拥有最高权力。

如果通过哈迪的修正案,无疑是允许两法平行或双重的刑事法律制度,这明显违反了联邦宪法。

也很显然的,哈迪提出RUU 355法令修正的方式引起很多怀疑。 从一开始他就非常谨慎地处理,之后修改了几次。 原来提出的法案是给予伊斯兰教法庭无限权力惩罚, 随后的变化是试图使其不违宪。

此外,他也从来没和伊斯兰学者、执法当局、机构(如Majlis Dakwah Negara)、理事会,甚至是掌管伊斯兰事务的最高机构 — 统治者会议协商。

哈迪没有引用任何研究或报告来支持他的观点,以证明加重刑罚足以摄制和减少违反伊斯兰教规的罪行。 他也没给予充足理由为何需要该法案,除了授权伊斯兰法庭处理上帝的律法。

任何拟议的改革必须是通过循证决策的,而不仅仅是修辞功夫或政治手段。

所以有些人称它为伊斯兰党的伊刑法。

 

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Let’s move forward…

20/02/2017

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Last Saturday I attended and spoke in a “No to RUU355” rally organised by Bebas.

The reason I agreed to be there has nothing to do with Islam.  Growing up in a national school, I always see Islam as a beautiful religion.  It is because Hadi’s 355 Bill will pave way for the implementation of Hudud Pas.  Pas has never consulted any independent religious scholars or related parties. Not even the Conference of Rulers who are the Heads of Islam.  Though it is Hadi’s democratic right to table his motion, the manner he did it from day one has been suspicious.  It was done discreetly and amended several times.  The Constitution has provided the requirements if he wants to implement Hudud Pas but he did not follow.  Instead he chose to amend Act 355.

First and foremost I want to express my appreciation and gratitude to all who have encouraged and sent the related news, pictures & videos as well as those who criticised and condemned me.

There have been 2 schools of thoughts on the argument whether is RUU355 is Hudud Pas or not.  Similarly on the constitutional aspect of it.  I am not going to touch on it anymore as to me or most of us, it is obviously being politicised.

There are comrades within Gerakan, for some obvious reasons criticised and disagreed with our participation at the rally yesterday. One of them even requested Gerakan President Datuk Seri Mah Siew Keong to expel me.

The reasons given are it is unjustified for me to attend and speak at the rally. The number game (which we anticipated) will show that we are fools to be exploited by certain people or the organiser.

The medias will give an impression that majority of Malaysians will support 355 or Hudud.

Hence I will caused the party to lose support from the Muslim voters especially from Umno and Pas. To them it is foolish to have profound conviction on our ideologies and beliefs at the expense of the latter.

Well, did we not have the support of Umno in the last 2 general elections? Did we not go against PAS?

We realised from the beginning that our side will be outnumbered but to me it is not the number that matters. It is a matter of our integrity and sincerity in pursuing our struggles.

* Special thanks to the Gerakan legal team (Ivanpal S. Grewal, Jayanthi Devi Balaguru, KT Chai & Ong Siang Liang ) as well as 26 other comrades and 3 members of BKC who turned up and believe in our struggles.

Coming back to the question of number, what can we expect when the organiser is a NGO (Bebas) compare to Pas, a national political party that governed the state of Kelantan as well as Selangor?

Are the people of Malaysia will be so ignorant to think that majority in the country support RUU355 or Hudud Pas?

Ironically a Dap leader challenged me to leave BN but except for Zaid Ibrahim, I dont see any of them there. And why are they still running the Selangor state along with Pas?

Similarly many from other political parties, associations and guilds (except for Federation of Hokkien Associations) voiced their objection against Hadi’s Bill previously. But why didn’t they support the cause now? Fear of persecution etc? Fear of losing support politically?

However I strongly believe many especially those in the urbans, though of different faiths and background support this noble cause and want Malaysia to remain a beautiful and peaceful secular nation.

To those who condemned me as enemy of Islam, let me reiterate; it is never about going against Islam. I have many close and good Muslim friends. Some of them even supported me. They know the whole episode is being politicised.

To those critics who are against me or merely want to be subservient to Umno or Pas for obvious reasons, I am speechless.

At the end of the day, to me/us it is about the betterment of our future generations. It is about defending our Federal Constitution. We can’t compromise on these…period.

 

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Have a joyful, blessed & prosperous Lunar New Year 2017

27/01/2017

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Is politics really that despicable?

21/01/2017

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The Bible says lies, hatred, greed, dishonesty, jealousy, envy and selfishness are considered as sinful. And we often see such characters exist among politicians.

I always believe in life one has to contribute back to the society in one way or another.  We can choose to do charitable deed, donation, make policies/laws, to uphold and protect the sanctity of the supreme law / rule of law, religion etc.   Participation in NGOs, political parties, associations is a good platform. All for the betterment of the nation and future generations.  Everyone has a role to play to serve the country.

In order to leave a legacy, one shall has a profound conviction in exercising his or her ideals with selfless sacrifice.

Along the journey in order to remain steadfast without wavering from the noble beliefs, he must first take care of himself and family.  To do that one should be financially sound (not necessarily wealthy) and stable.  One must has the knowledge, determination and sincerity to do and sacrifice for what is right without fear or favour. Otherwise the temptation and undue influence will change him.

Not many is willing and able to have the strength of such integrity.

We talk about non-discriminatory mentality and look forward to a meritocratic society. However when we talk about power and opportunity, often I do not see it in BN or PH and even from my own party ie Gerakan.  As the saying goes: you are either with or against us. Perhaps that is the rule of the game. That is why not everyone want to join politics or become a player.

Ultimately we can complain because rose bushes have thorns or rejoice because thorn bushes have roses.  We must have a clear conscience.

Why can’t we get rid of gangsterism protection moneys?

18/01/2017

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Over the last 2 weeks I have been told of gangsterism issues especially when one is to construct a new building or project. Try doing it in places like Klang, Rawang, Seri Kembangan, Balakong etc. The moment there is a groundbreaking ceremony there comes some people to ask for protection moneys.  If you don’t pay, be assured that your crane, tractor, bulldozer, building materials etc will soon be stolen.

This is not something new. I believe the authorities are aware of it. Similarly on the eyesore illegal advertisements which are dominated by ah longs; a never-ending problem.

Again the root cause is corruption…

Such problems can also be linked to social, education and economy factors.

The Joy of Giving

16/01/2017

Few years ago when I succeeded in helping a poor family in overturning an unfavourable decision at the Court of Appeal, I was humbled by their tears of appreciation.  Indeed when we are able to give happiness to others there will be true joy. Before the Chinese New Year this year, I hope to give more in every manner I can.  God bless…

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Be positive in 2017

31/12/2016

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Firstly I love to thank everyone who had played a role in my life in whatever circumstances.  Thanks for the support, encouragement and understanding in 2016.  Rightly or wrongly we have seen many negative aspects of our society. I do hope we believe that our nation can move forward positively in 2017 and years to come.  As Churchill once said “We make a living by what we get, but we make a life by what we give”.