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Tuesday, January 10, 2017

How Malaysian liberals like to pretend Article 3 is invisible

Today is the first installment of DANIAL ARIFF SHAARI’s multi-part series on the liberals deliberately skirting Islam’s status enshrined in our constitution

The Malay Mail Online‘s Boo Su-Lyn recently published an article titled ‘Should Malaysia ban campaigns based on race and religion?’ in which she ignorantly took off with a paradoxical premise.
Underlying Boo’s biased write-up are arguments reeking of anti-Islam sentiments.
Boo likely intended her Islamophobic readers to take home a proposition that whenever Islam is pronounced in a political candidate’s manifesto (perceived as a strict ‘ritual’ or ‘ceremonial’ sense), he or she may be disqualified from contesting. Or since it is not a law in our country, at least what they could do is refrain from voting such candidates.
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In her Jan 6 article, she quoted a recent judgment of the Indian Supreme Court, which reads as follows:
The State being secular in character will not identify itself with any one of the religions or religious denominations. This necessarily implies that religion will not play any role in the governance of the country which must at all times be secular in nature. The elections to the State legislature or to the Parliament or for that matter or any other body in the State is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practise,”.
Citing her cherry-picked extract from that particular judgment, Boo extrapolated, claiming in “a multi-ethnic and multi-religious country like Malaysia, politicians and political parties shouldn’t be campaigning based on race and religion…”.
What she conveniently and selectively ignored in the Indian apex court ruling is the context.
Indian Supreme Court Building, New Delhi, India.
Indian Supreme Court building, New Delhi, India
From her quote above, we can see that the court regarded the state – India – as being secular in character.
It is upon this constitutional principle that the court went on to determine that Indian election/political campaigns cannot be based on race or religion.
Observe nonetheless how paradoxical and simplistic Boo is when she said in the immediate next paragraph that “I won’t talk about whether Malaysia is a secular or Islamic state; the debate is old and unnecessary in the argument on whether this country would be better off if political candidates were barred from campaigning based on race and religion”.
If you were not going to consider the nature of a country – like what the Indian Supreme Court had rightfully done – then why even make the legal reference?

The parts that Boo left out

I’m not surprised that there are some parts of the Indian news story which the Malay Mail assistant news editor Boo decided not to disclose in her own article.
It must be noted that the Indian Supreme Court had considered the same matter previously in 1995. The court’s then three-bench judgment (which Boo completely disregarded) upheld that “an appeal in the name of ‘Hindutva’ to seek votes was not a corrupt practice warranting disqualification of a candidate as it was ‘a way of life’ and not a religion”.
The present bench however refrained from revisiting the past judgment.
A BJP Hindutva political campaign in India. The BJP is currently India's ruling party.
A BJP Hindutva political campaign in India
Moreover, Boo did not give any weight to the 4-3 minority judgment of the present bench which stated:
“To hold that a person who seeks to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices faced by them on the basis of traits having an origin in religion, race, caste, community or language would be remedied is to reduce democracy to an abstraction”.
These are proofs that Boo’s entire submission is based upon a paradoxical premise.
I wonder if her only interest is to undermine Islam and our efforts driven by political will and constitutional justification seeking to preserve and insulate the religion of the Federation from external threats.

N-O-T secular lah!

Boo Su-Lyn is aligned with the forces of liberalism, secularism and pluralism, obviously. This is clear from Boo’s statement that:
“Politicians are free to champion conservativism or liberalism and convince voters why their particular style of governance will work best, without having to raise racial or religious issues.”
To debunk her misleading claim, I wish to affirm that Malaysia is not a secular country.
Comparing Malaysian courts’ decision with that of Indian courts may be persuasive but it is definitely not binding.
India’s constitution clearly states that it is a secular country whereas Malaysia’s is silent on whether we are a secular country.
Malaysia is certainly not on the path towards secularism at any rate
Malaysia is certainly not on the path towards secularism at any rate
Boo, as always, is insensitive to our constitution’s Article 3 which provides Islam as the religion of the Federation — a provision of which regarding Hinduism is nowhere to be found in India’s Constitution regardless that the majority of its citizens are Hindus.
Malaysian courts have consistently proved to adhere to the construct of our constitution which recognizes Islam as a religion worthy of higher importance and position in our country compared to other religions.
The case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors observed the court taking an affirmative stand stating that:
“Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, private or public, legal, political, economic, social, cultural, moral or judicial.”
Nonetheless, as how the Indian Supreme Court in 1995 also held, and over here remains intact and not overruled by other judgments, Islam as the religion of the Federation similarly means ‘a way of life’ for our country following the case of Lina Joy.
Therefore, this means that whenever Islam or any issues pertaining to Islam as a way of life in all aspects becomes the talk of the town on the eve of an election, say for instance RUU355 to strengthen Syariah courts, or the segregation of male and female bus passengers based on Islamic point of view, or the rights of LGBT which is against Islamic teachings, the candidates’ appeal based on such issues may not be disqualified — a situation which Boo seeks to deny its legitimacy.
Evidently supporting a ban on election campaigns based on race and religion, she said in her article:
“Then we won’t see things like hudud being bandied about in elections anymore.”
This is why Boo brought up the issue of RUU355 – which she mistook as hudud – and the political support expressed by PAS and Umno.
She attempted to plant an inevitable perception in the minds of Islamophobic citizens that religion is being used for political mileage despite the fact that in essence therein lies a genuine cause for concern among Muslims and Islamic affairs.

Just follow the constitution

Boo also claimed that as a result of this alleged racial and religious-based politics, the labels of ‘anti-Malay’, ‘anti-Chinese’, ‘anti-Muslim’, ‘anti-Christian’, etc have become the mantra for political candidates or their followers to use against their opponents.
However, Boo did not consider the occurrences which give rise to such labelling. In order to remove the word ‘anti’, the most preferable way would be to return to our constitution.
Such labelling, racist remarks or religiously insensitive statements will not arise if the citizens are well equipped with the correct understanding of our constitution. We cannot determine who is really ‘anti’ anything until and unless we refer to the relevant provisions contained therein.
This is why it is arguably befitting to claim that the new political cooperation between Pakatan Harapan and Parti Pribumi Bersatu Malaysia is unconstitutional and anti-Islam.
Article 3(1) of the Federal Constitution states that while Islam is the religion of the federation, other religions may be practised in peace and harmony. The word freely is not present within the text.
Article 3(1) of the federal constitution states that while Islam is the religion of the Federation, other religions may be practised in peace and harmony. “Freedom” is not present within the text
This is so as it (Pakatan Harapan) plans to introduce a new element – freedom – with regards to freedom of religion in Malaysia which is missing from Article 3 of our constitution.
It is also justified to claim that DAP is anti-Islam as it is established based upon a socialist ideology and seeks to implant secularism.
Regretfully, Boo did not bother to consider as how she decided to ignore the nature of our country in discussing the subject matter which she herself brought up for discourse.
Then we realize her entire submission was nothing short of paradoxical mumbo jumbo.

Danial Ariff Shaari is a lawyer and activist

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