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Law and Society

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Dalam kes Che Omar bin Che Soh lwn Pendakwa Raya [1988] 2 MLJ 55 hujjah yang dibuat bagi pihak perayu-perayu ialah hukum mati mandatori bagi kesalahan mengedar dadah berbahaya dan memilik senjata api adalah bertentangan dengan ajaran Islam dan oleh kerana itu terbatal.
Dihujjahkan bahawa oleh kerana Islam adalah agama Persekutuan, hukuman mati mandatori yang dikenakan kepada kesalahan itu, yang bukan kesalahan “hudud” atau “qisas” mengikut undang-undang Islam, adalah berlawanan dengan ajaran Islam dan oleh kerana itu tidak sah mengikut Perlembagaan. Sungguhpun Salleh Abas, Ketua Hakim Negara pada masa itu, apabila memberi penghakiman telah berkata tidak syak Islam bukan hanya kumpulan kepercayaan dan upacara agama sahaja bahkan adalah cara hidup itu yang lengkap termasuk semua bidang amalan manusia, sama ada peribadi atau umum, mengenai perundangan, politik, ekonomi, sosial, kebudayaan, moral atau kehakiman, dan cara mengatur semua cara hidup termasuk hukum-hukum dan akhlak semuanya berpandu kepada wahyu dari Allah yang terdapat dalam AI-Quran dan hadith Nabi s.a.w. akan tetapi beliau bertanya adakah itu makna Islam yang dimaksud oleh pengubal Perlembagaan itu? Beliau telah kembali merujuk kepada sejarah kemasukan British di Malaysia sebagai penjajah yang mana mereka telah membahagikan agama kepada dua jenis, satu dari segi peribadi dan satu dari segi awam. Dalam semua perkara awam termasuk undang-undang pentadbiran dan kehakiman, mereka telah mengenepikan Islam dan mengikut cara yang sekular. Oleh kerana itu hanya undang-undang Islam mengenai keluarga dan warisan telah dibenarkan dikenakan dan itu pun hanya kepada orang-orang Islam. Hasil dari masa penjajah British itu, undang-undang Islam telah diasingkan dalam lingkungan yang sempit mengenai undang-undang perkahwinan, perceraian dan warisan. Inilah makna “Islam” yang dimaksudkan oleh pengubal Perlembagaan itu. Oleh kerana itu Perkara 3 Perlembagaan itu tidak boleh digunakan sebagai hujjah untuk mengatakan hukuman mati bagi kesalahan mengedar dadah berbahaya atau mana-mana kesalahan lain tidak sah kerana berlawanan dengan Islam dan oleh kerana itu berlawanan dengan Perlembagaan itu .Sayangnya yang arif Hakim itu telah menunjukkan bahawa beliau masih terikat dengan konsep penjajah dan tidak menimbangkan bahawa Malaysia telah Merdeka dan tidak lagi di bawah kuasa penjajah itu.
Dalam kes Teoh Eng Huat lwn Kadhi Pasir Mas [1990] 2 MLJ 301 soalnya sama adi seorang gadis Cina umur 17 tahun 8 bulan berhak memeluk agama Islam tanpa pengetahuan dan persetujuan bapanya. Di Mahkamah Tinggi telah diputuskan oleh kerana gadis Cina itu telah memeluk agama Islam dengan sukarelanya dan tidak dipaksa oleh sesiapa dia berhak memeluk agama Islam mengikut Perkara 11(1) Perlembagaan Malaysia yang memperuntukkan “Semua orang-orang berhak menganut dan mengamal ugamanya dan tertakluk kepada fasal (4) menyebarkannya”.
Akan tetapi apabila rayuan dibuat oleh bapa itu ke Mahkamah Agong, Abdul Hamid Ketua Hakim Negara pada masa itu telah merujuk kepada Perlembagaan Malaysia dan khususnya Perkara 3 yang menyebut Islam adalah ugama Persekutuan; dan juga pada pendapat Suruhanjaya Reid mengenai Perkara 3 itu. Seperti yang telah dinyatakan dahulu Suruhanjaya Reid tidak menyokong diadakan peruntukan seperti Perkara 3 akan Hakim yang arif itu beliau berkata “Pada asas iaitu Perlembagaan kita digubal dan diisytiharkan.” Beliau merujuk kepada Perkara 12(3) dan (4) Perlembagaan yang memperuntukkan-
(3) Tiada sesiapa pun boleh diwajibkan menerima ajaran-ajaran mengenai apa-apa ugama atau mengambil bahagian dalam apa-apa upacara atau sembahyang sesuatu ugama yang lain daripada ugamanya sendiri.
(4) Bagi maksud fasal (3) ugama bagi seseorang yang berumur kurang daripada lapan belas tahun adalah ditetapkan oleh ibubapa atau penjaganya.
Sungguhpun fasal (4) itu menyebut “untuk maksud fasal (3) iaitu mengenai pengajaran ugama di sekolah, Hakim yang arif itu telah menggunakan fasal itu untuk memutuskan seorang ibubapa atau penjaga berhak menentukan agama seorang yang belum dewasa. Sebetulnya beliau tidak perlu membuat keputusan itu oleh kerana pada masa itu gadis itu telah pun berumur lebih dari lapan belas tahun. Keputusannya ialah dianggap obiter dicta atau pandangan sahaja, akan tetapi sayangnya ia telah diterima pakai dalam undang-undang di Malaysia.
Dalam kes Menteri Hal Ehwal Dalam Negeri lwn Jamaludin [19891] 1 MLJ 418mengikut faktanya Jamaludin seorang asalnya melayu dan berugama Islam telah memeluk agama Christian dan telah cuba memasukkan orang-orang Melayu ke agama Christian dan telah berjaya memasukkan enam orang Melayu ke agama Christian. Dia telah ditahan dibawah Akta Keselamatan dalam Negeri, dan telah merayu kepada Mahkamah. Mahkamah Tinggi telah memutuskan alasan untuk pertahanan itu tidak sah kerana kebebasan agama orang itu telah diganggu. Rayuan kepada Mahkamah Agong juga telah ditolak. Di dua-dua Mahkamah itu hakim-hakimnya menegaskan hak orang itu menganuti dan mengamalkan agamanya. Sayangnya mahkamah-mahkamah itu tidak sentuh sama ada orang itu berhak menyebarkan agamanya pada orang-orang Islam.
Mengikut kes India Rev. Stanislaus v State of Madhya Pradesh AIR 1977 S.C. 908 telah menyebut hak menyebarkan agama tidak termasuk memasukkan orang lain kepada agama orang itu kerana jika seseorang sengaja berusaha memasukkan orang lain kepada agamanya, dan bukan hanya berusaha menyampaikan atau menyebarkan ajaran agama itu, ini akan menjejas hak kebebasan kepercayaan orang itu.

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