Muslims at mercy of religious authorities if human rights not upheld, say lawyers

The move by the Federal Territories Islamic Religious Council to uphold the argument that all Islamic enactments are excluded from fundamental liberties in the Federal Constitution will discriminate against Muslims in Malaysia. – The Malaysian Insider file pic, May 18, 2015.

Muslims in secular Malaysia, who are also subjected to Islamic laws, will be discriminated if a religious council’s proposition to exempt them from enjoying all fundamental rights under the Federal Constitution is allowed, lawyers said.

They said this would only leave non-Muslims to enjoy such universal human rights.

This line of argument also went against the teachings of Islam which provided that the authorities respected the faith of followers, similar to those accorded in the constitution, they added.

What was worrying, they said, was that denying the majority population such rights would have an effect on investor confidence on Malaysia and political leaders would lose all moral authority to speak up on critical issues in international forums.

Lawyer Nizam Bashir told The Malaysian Insider that if such a proposition was upheld by the Federal Court, then Muslims may find that “fundamental liberties” need not be observed by the state legislature when enacting Islamic laws.

"MAIWP's proposition that fundamental liberties are irrelevant when enacting Islamic law appears to be unsupported by the principal source of Islamic law, the Quran," he said, referring to the Federal Territories Islamic Religious Council.

Nizam cited some examples such as the right to privacy (Quran 24:27 and 49:12); the right to reputation (Quran 49:11); freedom of conscience (Quran 2:256 and 10:99); and presumption of innocence (Quran 17:15).

He said this in response to MAIWP, which opposes non-Muslim lawyers practising Shariah law and last week, contended in court that all Islamic enactments were excluded from fundamental liberties in the Federal Constitution. 

MAIWP lawyer Mohd Hanif Khatri Abdulla said this was a new point of constitutional importance to be raised against Victoria Jayaseele Martin's appeal in the Federal Court, where the lawyer was seeking the right to practise Islamic law in the Shariah court.

The case will be heard on August 13.

Nizam added that one must also not ignore the Universal Islamic Declaration of Human Rights and the Cairo Declaration on Human Rights in Islam of which Malaysia was a signatory.

Civil rights lawyer Syahredzan Johan said the position adopted by MAIWP was an attempt to rewrite the constitution.

"The secularity of the constitution is enshrined in Article 4 which provides that the charter is the highest law of the land and any law that is inconsistent with the Federal Constitution is null and void.”Civil rights lawyer Syahredzan Johan says the Federal Territories Islamic Religious Council is trying to rewrite the constitution. – The Malaysian Insider pic by Kamal Ariffin, May 18, 2015.

Syahredzan said there were no provisos in fundamental liberty clauses which allowed these freedoms to be denied to Muslims when it came to state Shariah enactments. 

"If we were to take MAIWP's argument, then it would mean that Muslims have lesser fundamental liberties compared with non-Muslims.

“In fact, it would render the fundamental liberties of Muslims illusory and ineffective. Surely, this is not what the framers of the constitution intended when Part II was drafted."

Constitutional law lecturer Dr Abdul Aziz Bari said he would not take lawyers argument in court seriously. 

"They tend to throw things at the bench just to get the judgment for their client. Even those who don't support Islamic law like in Che Omar bin Che Soh (1988) case put up such a proposition which was rejected by the court.”

In that case, lawyers for Che Omar, who was charged with trafficking and possession of firearms which carried a capital punishment, argued that their client could not sentenced to death as Malaysia was a non-secular state because Islam is the religion of the federation.

The bench, tracing the position of Islam from the time of British intervention, held Malaysia is indeed a secular state and that federal laws that prescribed the death sentence were constitutional.

Lawyer R. Kenghadharan said Hanif was attempting to present a perverse argument, because the legal position was settled that all laws, including Shariah-related enactments passed by state assemblies and laws by Parliament (for Federal Territories) could not override any provision in the constitution.

"This is an attempt to weaken democratic rights in the constitution which will eventually lead to anarchy.”

He said such a move would dent investor confidence as Malaysia was a major trading nation.

Furthermore, he said Malaysia would lose its moral authority to voice its views and stand on human rights violation elsewhere.

- TMI