IN the previous article, we discussed on Chief Justice of Malaysia Tun Tengku Maimun Tuan Mat stressed on the supremacy of the Federal Constitution over all other laws in Malaysia, including Syariah enactments.
This is due to the structure and foundation of nation’s Federal Constitution, given the country’s historical and philosophical background.
Here, we will dissect another famed judge’s report, Datuk Seri Mohd Hishamudin Yunus on the Federal Constitution and on why the argument that Malaysia is an Islamic country is not premised on reality, legally speaking.
Hishamudin, a former Court of Appeal judge
Hishamudin, a former Court of Appeal judge, stated on Sept 10, 2020, in his article titled “Is Malaysia a Secular or a Theocratic State?” that Malaysia is a secular one, not a theocratic Islamic state, based on the Federal Constitution.
He highlighted that when the then-prime minister Tun Dr Mahathir Mohamad declared Malaysia to be an “Islamic state” in 2001, it was merely a political declaration and nothing more!
He further noted that the Constitutional Proposals for the Federation of Malaya 1957, which was published in July 1957, clearly says that Islam is the Federation’s religion.
The report went on to say that this will have no bearing on the Federation’s status as a secular state, and that everyone will have the right to profess and practise his or her own religion, as well as the right to propagate it, though this last right will be subject to any restrictions imposed by state law relating to the propagation of any other religious doctrine or belief among Muslims.
According to him, this underlined that the drafters of the Federal Constitution intended the Federation of Malaya of 1957 to be a secular, not a theocratic nation.
Hishamudin further remarked that in a speech to the Federal Legislative Council in 1958, Malaysia’s first Prime Minister, Tunku Abdul Rahman, stated, ” I would like to make it clear that this country is not an Islamic state as it is generally understood, we merely provided that Islam shall be the official religion of the State.”
He went on to say that the Supreme Court in the case of Che Omar bin Che Soh v Public Prosecutor in 1988 reaffirmed that the British development of law in Malaya had the effect of transforming the legal system into a secular one, and that the constitutional declaration that Islam as the “religion of the Federation”did not mean that laws passed by Parliament had to be equated with Islamic religious principles.
The court went on to say that holding otherwise would be contradictory to the Federation’s constitutional and legal heritage, as well as the Civil Law Act of 1956, which allows for the reception of English common law in the country.
The learned judge made a point of saying that the constitutional position of Malaysia is that it is a secular nation, citing the example of Indira Gandhi’s case.
To begin with, he stated that the Federation’s judicial power is enshrined in the Federal Constitution’s essential structure. As a result, the 1988 constitutional amendment, which curtailed and purports to destroy the judicial power vested in the court, is null and unconstitutional.
Hishamudin emphasised that the authority of judicial review is part of the Federal Constitution’s fundamental framework. As a result, any attempt by Parliament to limit or eliminate judicial review is futile. As a result, ouster clauses are unconstitutional and void.
Moreover, he mentioned that a constitutional amendment cannot abrogate or erase the essential structure’s characteristics.
Finally, because judicial review is a fundamental feature of the Federal Constitution, Art 121(1A) cannot and does not preclude ordinary courts from reviewing the acts of Islamic institutions established by statute to determine whether they have acted outside of their statutory authority, including the incorrect classification of a subject as falling under the jurisdiction of a Syariah Court.
Article 121(1A) of the Federal Constitution stated as follows:
‘The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.’
As a result of the Federal Court’s acceptance of the doctrine of basic structure (BDS) in Indira Gandhi, Hishamudin concluded that Parliament could not modify the Federal Constitution to convert Malaysia from a secular to an Islamic state. Because doing so would jeopardise the Federal Constitution’s essential framework, which is that Malaysia is a secular state.
Tun Salleh Abas, former Lord President of Malaysia
Apart from both Hishamudin and Chief Justice of Malaysia Tun Tengku Maimun Tuan Mat, there was another distinguished judge who had earlier mentioned that Malaysia is indeed a secular country, with a Muslim majority population.
According to a Malaysiakini report on July 2, 2002, the late Salleh had clearly stated that Malaysia is a secular state, which is clearly indicated by the Federal Constitution and laws.
So to summarise, the Syariah courts work within their narrow jurisdiction and are unable to expand since their power is constrained, and they risk being ruled unconstitutional and void if they extend their jurisdiction beyond their mandate.
Conclusion
What conclusions may we draw from these jurists’ observations on the clash between the Federal Constitution and the Syariah Courts?
Malaysia is, first and foremost, a secular country. Politicians declared Malaysia to be an Islamic state in order to achieve political gain, which is contrary to the Federal Constitution.
Secondly, the Federal Constitution is the country’s supreme law and any law that contradicts it will be ruled null and void.
Third, the powers of Syariah Courts are limited and they cannot be used to circumvent the Federal Constitution.
Fourth, any constitutional amendments that desecrate the Federal Constitution can be deemed unconstitutional and void.
Fifth, Islam is the Federation’s religion but others will have the freedom to practise their own religion.
Finally, the Federal Constitution must be interpreted within the historical and philosophical contexts in which it was written. This is something that all Malaysians should be grateful for at all times, especially the presiding judges.
So why are we so confounded, even though the Federal Constitution is very clear on the role of the civil courts and Syariah courts, for instance?
The reason is because we are being misled the entire time and we never question the information provided to us by individuals with a vested interest to divide us.
But let us study more about our cherished Federal Constitution rather than blaming these twisted individuals. Civil society may play an important role in educating the public on this, particularly for the younger generation who will form the future of our beloved country. – March 6, 2022.
R Paneir Selvam is the principal consultant of Arunachala Research & Consultancy Sdn Bhd, a think tank specialising on strategic national and geo-political matters.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
