A clearer picture about Islam and the Federal Constitution

We have now come to the point where religion is used to control every aspect of a citizen’s life, including their freedom of thought.

COMMENT

By Surendra Ananth

Recently, the former chief justice, Ahmad Fairuz Abdul Halim, said in a lecture that any law that was in contradiction to Islamic scriptures was unconstitutional. This was later supported by a senior lawyer named Haniff Khatri Abdulla. In essence, both of them argue that Article 3 of the Federal Constitution has the effect of incorporating substantive Islamic jurisprudence into the constitution. They say, therefore, that any law that is inconsistent with Islamic jurisprudence is unconstitutional.

Many lawyers, including a former Federal Court judge, spoke out against such a proposition. I think the topic requires a more detailed analysis in light of the rising extremism in the country.

Let us start with the basics. Article 3(1) states that, “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” The first question that must be asked is this: What is the meaning of the phrase “religion of the Federation”? In interpreting a constitution, one cannot apply ordinary principles of interpretation. Recognition must be given to “the character and origin of the instrument” and “respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language”. The historical perspective behind the phrase is, therefore, important. A constitution cannot be read literally.

The Reid Commission, the commission that put up the first draft of the Federal Constitution, stated (on Article 3(1)), “…shall not imply that the State is not a secular state”. This was reiterated by the Working Party in 1957 that noted, “This will in no way affect the present position of the Federation as a secular State”. It was on this basis that Sarawak and Sabah agreed to enter the federation. The Cobbold Commission observed, “We are satisfied that the proposal in no way jeopardises freedom of religion in the federation, which in effect would be secular”.

It was in this context that the Supreme Court in Che Omar Bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 observed:

“The law was only applicable to Muslims as their personal law. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only. (See M.B. Hooker, Islamic Law in South-east Asia, 1984.) In our view, it is in this sense of dichotomy that the framers of the constitution understood the meaning of the word “Islam” in the context of Article 3. If it had been otherwise, there would have been another provision in the constitution which would have the effect that any law contrary to the injunction of Islam will be void.”

The usage of the word “Islam” in Article 3(1) is only confined to personal law. The last sentence of the quoted passage is important. An example of a constitution where Islamic law is supreme is the Constitution of the Republic of Maldives. Article 10 of that constitution provides

“10. (a) The religion of the State of the Maldives is Islam. Islam shall be the one of the basis of all the laws of the Maldives (sic).

(b) No law contrary to any tenet of Islam shall be enacted in the Maldives.”

This is what the Supreme Court meant in the said passage. Article 3(1) does not go that far. My colleague from the Malaysian Bar, Haniff Khatri, sought to distinguish the Supreme Court decision by reportedly saying that all that was stated was that laws made by Parliament are secular. I am not sure which judgment he read, but the one that is reported states:

“It would thus appear that not much reliance can be placed on the wording of Article 3 to sustain the submission that punishment of death for the offence of drug trafficking, or any other offence, will be void as being unconstitutional. We, therefore, do not consider important to discuss cases cited by counsel on the question of death penalty being contrary to Islamic perception.”

What this means is that no law can be declared unconstitutional for it being contrary to Islamic jurisprudence. Professor Ahmad Ibrahim, who was the prime mover behind the Islamic reforms in the country back in the 1980s, observed in one of his writings that:

“However it was explained by the Alliance Party that it was not intended to interfere with the position of the Rulers as Head of Islam in their own States and that the intention in making Islam the official religion of the Federation was primarily for ceremonial purposes, for instance to enable prayers to be offered in the Islamic way on official occasions such as the installation of the Yang di-Pertuan Agong, Merdeka Day, and similar occasions. This explanation was accepted by the Rulers and accordingly Article 3 of the Federal Constitution enacts that Islam is the religion of the Federation. In conformity with previous practice the Article goes on to say that other religions may be practised in peace and harmony in any part of the Federation.”

This should end the debate. There is, however, another important dimension. My colleague makes no mention of Article 3(4), which states, “(4) Nothing in this Article derogates from any other provision of this Constitution”. What this sub-article means is that the position of Islam as the religion of the federation cannot be read in a manner that detracts from other constitutional provisions. Article 3(1) must pay homage to other provisions and not the reverse. If Islamic jurisprudence forms part of the constitution, this would render a number of other constitutional provisions to be in conflict with itself. As an example, the Federal List allows Parliament to make laws on “betting and lotaries” and “intoxicating drugs and liquor”.

My colleague also uses section 3 of the Civil Law Act to stress that there is a need to look at the needs of local society. This is exactly the point. Malaysia is not an Islamic state. We have a multiracial and multireligious society. To imply that one specific religion represents the tradition of a multi-religious society is inherently illogical. It is for this very reason that our laws are secular.

It is our duty as citizens of this country to uphold the constitution. It is our duty to speak up against, as Mohamed Suffian (former lord president) put it, Muslim extremism. We cannot afford to stay silent. We have now come to the point where religion is used to control every aspect of a citizen’s life, including their freedom of thought. As Tunku Abdul Rahman, our father of independence, once said:

“After all these years of trying to build a genuine multiracial and multireligious Malaysia, we are now confronted with a new danger – Islamic fundamentalism … they are now raising all kinds of ideas to Islamise the country, and this is not good. Malaysia cannot practise Islam fully because half of the population is not Muslim. They have a different culture and different ways of life, and they don’t want Islam … In the past, and I know this since I have been through all this since Independence, Malays, Chinese and Indians had no problems because we stuck to our constitutional bargain and we don’t want to impose our values on other people. Today, even the party that I led for so long has done a lot of new things about Islam and want to Islamise the party.”

Surendra Ananth is an advocate and solicitor in the High Court of Malaya. -FMT