Malaysiakini : It is very clear from the above statements that the party’s goal is a theocratic Islamic state for Malaysia with hudud imposed. A theocratic Islamic state is not compatible with the Federal Constitution, which provides equality for all citizens before the law and entitles them to equal protection of the law.

As the Constitution stands today, a theocratic Islamic state is not possible, as it would be an attack on the basic structure of the Constitution, which includes protection of fundamental rights of minorities.

A Turd Called Hadi

Basic structure doctrine

The basic structure of a Constitution is intrinsic to, and arises from, the very nature of the Constitution. It is settled law that features of the basic structure cannot be abrogated or removed by a constitutional amendment. (Kesavananda Bharati v State of Kerala Air 1973 SC 1461).

In Malaysia, the Federal Constitution “is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void”. Thus, in Malaysia, the Constitution is supreme and not Parliament.

In Sivarasa Rasiah v. Badan Peguam Malaysia & anor (2010) 2 MLJ 333, the Federal Court, speaking through Gopal Sri Ram, said at page 342: “... Further it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric.

“Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution.”

In M Indira Gandhi's case, the Federal Court, in affirming the basic structure doctrine, amongst others, stated on page 52:

1. “The Federal Constitution is premised on certain underlying principles...these principles include the separation of powers, the rule of law and the protection of minorities.”

2. “These principles are part of the basic structure of the Constitution. Hence, they cannot be abrogated or removed”

In Alma Nudo Atenza v Public Prosecutor and another (2019) 4 MLJ 26, the Federal Court, in affirming the doctrine of basic structure of the Constitution, stated that “...the power of the ordinary courts to review the legality of state action is sacrosanct and form part of the basic structure of the Constitution.”

This means that even if Parliament passes a law by a 2/3 majority (or by 100 percent of MPs) to abolish Fundamental liberties, eg minorities' rights, this amendment will be struck out as null and void as being unconstitutional by the court.

4. Thus, from above, especially from pronouncements made by Hadi, it is clear that PAS' goal is to create a theocratic Islamic state. The Kelantan Syariah Criminal Code (II) Bill 1993 provides, amongst others, for hudud offences. This PAS quest for a theocratic Islamic state is unconstitutional and against the Constitution’s basic structure and the fundamental rights, including equality (Article 8) guaranteed by the Constitution.

Oath of MPs

The MPs must take an oath before being appointed as members of the House of Representatives that they would “... bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.” Thus, MPs must defend the Constitution against PAS' push for a theocratic state.

The MCCBCHST calls upon all Malaysians to unite and defend the Federal Constitution, which is a product of give and take, and the social contract embodied in it is one of moderation and compromise. A theocratic state will have the effect of undermining the Federal Constitution and destroying the fundamental rights of citizens.

The MCCBCHST further calls upon PAS to give a pledge to protect the Federal Constitution and abide by it.

Even when there is no theocratic state, PAS was found wanting, and 16 offences contained in the Kelantan Syariah Criminal Code (1) Enactment 2019 were ruled to be null and void as being in conflict with the Federal Constitution by the Federal Court in the case of lawyer Nik Elin Nik Rashid. Thus, PAS must proceed with caution and abide by the Federal Constitution.