Law professor Abdul Aziz Bari has questioned the notion held by two Umno ministers that homosexuality is ‘unconstitutional’, based on their interpretation of Article 3(1) of the federal constitution.
While saying he is not condoning homosexuality, Abdul Aziz said the provision may be interpreted in many ways. One of these is that Islam is a kind of national ideology or national faith.
“However that does not mean that Islamic laws and values can or should be imposed on everybody. Non-Muslims in particular are free to practise their religion, something that is expressly stated in Article 3(1) itself after declaring the position of Islam,” he said.
“In fact the statement by the two ministers might go against this proviso. Minister in the Prime Minister's Department, Jamil Khir Baharom mentioned the provisions of the Penal Code; that is an ordinary law. It is not the constitution. The act may be prosecuted but that does not mean that it is unconstitutional.”
Yesterday Jamil Khir and de facto Law Minister Mohd Nazri Abdul Aziz had agreed with one another that ‘homosexuality is unconstitutional’.
Abdul Aziz countered that the constitution is not a penal law but the basic law that defines the powers of the state, as well as the rights of ordinary people.
“Any law that is perceived to be not in line with the constitution (which serves as the benchmark) may be challenged,” he said.
Given that two ministers have said their piece, Abdul Aziz proposed that the cabinet should clear the air.
“One could assume that, since ministers are bound by the collective responsibility principle, what they have said represents the official stand of the government. But still it is advisable for the cabinet to issue a statement on the matter.”
‘Take matter to court’
Abdul Aziz also said that, if the gay community and its sympathisers are concerned about such statements, they can apply for judicial review and a declaration.
“They may proceed on some of the provisions in the constitution like Article 5 on the right to life. The court here has ruled that life is not just purely (about) life but (includes) quality of life,” he explained.
"The two ministers have obviously failed to understand the constitutional scheme, leading to the failure on their part to apply the constitutional provision correctly.
"The two seem to think that Article 3(1) means the application of Islamic values and systems even to non-Muslims, which is not the case.
“Such an erroneous impression is not only against the constitution but also against Islam which guarantees religious freedom and abhors compulsion in religion.”
Acts associated with homosexuality are barred in Malaysia, with ‘unnatural sex’ being punishable under Section 377 of the Penal Code.
While saying he is not condoning homosexuality, Abdul Aziz said the provision may be interpreted in many ways. One of these is that Islam is a kind of national ideology or national faith.
“However that does not mean that Islamic laws and values can or should be imposed on everybody. Non-Muslims in particular are free to practise their religion, something that is expressly stated in Article 3(1) itself after declaring the position of Islam,” he said.“In fact the statement by the two ministers might go against this proviso. Minister in the Prime Minister's Department, Jamil Khir Baharom mentioned the provisions of the Penal Code; that is an ordinary law. It is not the constitution. The act may be prosecuted but that does not mean that it is unconstitutional.”
Yesterday Jamil Khir and de facto Law Minister Mohd Nazri Abdul Aziz had agreed with one another that ‘homosexuality is unconstitutional’.
Abdul Aziz countered that the constitution is not a penal law but the basic law that defines the powers of the state, as well as the rights of ordinary people.
“Any law that is perceived to be not in line with the constitution (which serves as the benchmark) may be challenged,” he said.
Given that two ministers have said their piece, Abdul Aziz proposed that the cabinet should clear the air.
“One could assume that, since ministers are bound by the collective responsibility principle, what they have said represents the official stand of the government. But still it is advisable for the cabinet to issue a statement on the matter.”
‘Take matter to court’
Abdul Aziz also said that, if the gay community and its sympathisers are concerned about such statements, they can apply for judicial review and a declaration.
“They may proceed on some of the provisions in the constitution like Article 5 on the right to life. The court here has ruled that life is not just purely (about) life but (includes) quality of life,” he explained."The two ministers have obviously failed to understand the constitutional scheme, leading to the failure on their part to apply the constitutional provision correctly.
"The two seem to think that Article 3(1) means the application of Islamic values and systems even to non-Muslims, which is not the case.
“Such an erroneous impression is not only against the constitution but also against Islam which guarantees religious freedom and abhors compulsion in religion.”
Acts associated with homosexuality are barred in Malaysia, with ‘unnatural sex’ being punishable under Section 377 of the Penal Code.
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