Shad: Constitution does not make Islam supreme

Law expert notes 'delicate balance' in the basic law and laments that institutions are falling short in performance.

KUALA LUMPUR: A constitutional expert has sounded a warning against the erosion of constitutional powers and protections and said Malaysia’s institutions had fallen short of their responsibilities.

Shad Faruqi, emeritus law professor of Universiti Teknologi Mara (UiTM) also lamented that there was a hardening of attitudes towards those who did not conform to conventional wisdom.

Prof Shad, writing in his weekly column at The Star, said federal laws had been eroded by the encroachment of the syariah courts meting out criminal penalties on homosexuality, gambling, betting, murder, incest and theft, even though these are clearly part of federal law.

This was happening despite the jurisdiction of syariah courts in peninsular Malaysia and native courts in Sabah and Sarawak being strictly limited and defined.

Prof Shad chided those who sought to promote Islam for being intolerant of those whose views differed from theirs. He said: “It does not help the cause to brand everyone who differs with you as a renegade, deviationist, “liberal” or “pluralist”, and pointed out that “there are many roads to salvation”.

In noting the erosion of religious protections in the Constitution, Prof Shad noted that the position of Islam in the Constitution did not provide for Islam’s primacy.

The rights of others were protected by Article 3(4), he said.

The full implication of the Article – “nothing in this Article derogates from any other provision of this Constitution” – was that Islam’s constitutional position of Islam does not override the other features of our Constitution, including the fundamental rights of all citizens.

The concept of the rule of law meant that the law must be obeyed, as it exists.

He pointed out that those who wish to promote Islam might differ with each other on how best to achieve their aim and lamented the name-calling that went on.

Prof Shad gave several examples on how constitutional protections were being eroded, such as exhumation of a body for reburial, raids on churches to seize Bibles in Bahasa Malaysia or to investigate alleged proselytisation; a raid on a temple to prevent a Hindu wedding”.

He called for greater discretion in handling these issues.

He also noted that federal syariah authorities were issuing national fatwas even though the sultans were the ultimate authority for Islam in the Malay states, and that syariah courts were dissolving non-Muslim marriages and allowing conversions of non-Muslim infants to Islam, disregarding requirements in state Enactments.

“In many such painful disputes, which are bringing Islam a bad name, the civil courts are abdicating their responsibility to enforce the supreme Constitution,” he said.

He said controversy about the raids on churches and temples arose when it appeared that the authorities of one religion were violating the sanctity of the places of worship of another religion.

Prof Shad also noted, however, that Muslim intellectuals who had accepted the Federal Constitution as the supreme law and a yardstick of all actions were now of the opinion that the Constitution is non-religious.

However, if the constitutional scheme of things in 1957 and 1963 was now unacceptable to the ruling elite “because it has become out of tune with the volksgeist (popular spirit) of the Malay-Muslim population, then the Constitution must be amended legally and not extra legally, he said.

Due to this, in some areas, the performance of our institutions has fallen short of the imperatives of the Constitution, he said.

“Many administrative actions of Muslim authorities raise constitutional objections. If we violate the law for a good cause, evil people may violate the law for a bad cause,” he added.

He noted that Malaysia was not a fully theocratic or Islamic State, and that the drafters of the Constitution and political leaders at independence were mindful of Malaysia’s racial and religious diversity and had sought “a delicate balance between religion and secularism, religion and modern constitutionalism”.