Walking the middle path

Palace of Justice, Putrajaya. - Filepic

TILL a few years ago, it was regarded as acceptable in Muslim intellectual circles to talk of our Federal Constitution as the supreme law of the land and to refer to its glittering provisions as the yardstick by which to measure the constitutionality of all actions – whether executive or legislative, federal or state, civil or criminal, secular or religious.

Lately, it is passé (no longer fashionable) in some circles to think or talk in such non-religious and “secular” terms.

Consequently, a number of my seminar papers and speeches affirming the supremacy of the Constitution have attracted the wrath of Muslim critics.

To all my learned detractors, I wish to say that in an intellectual setting, our critics are our best friends. They broaden our horizons and open up vistas and dimensions we may have missed out. They correct our flaws. They help us to grow better.

I have always acknowledged that the Constitution of Malaysia in Article 3(1) grants a very exalted position to Islam as the religion of the Federation.

In view of the fact that Islamic law applies compulsorily to Muslims in a number of areas enumerated in Schedule 9, List II of the Constitution, I concluded in my book, Document of Destiny, that Malaysia is not a secular state. The legal system is hybrid or plural.

At the same time, Malaysia is not a full-fledged theocratic or Islamic State. The drafters of the Federal Constitution, as well as the leaders of our independence, were mindful of our dazzling racial and religious diversity.

So they sought a delicate balance between religion and secularism, religion and modern constitutionalism.

Federal and State Enactments on Islam were reconciled with constitutional supremacy by Article 3(4), which says that “nothing in this Article derogates from any other provision of this Constitution”.

The implication of Article 3(4) is that Article 3(1) on Islam does not override the other features of our Constitution, including the fundamental rights for all citizens.

Along with Islam, Malay adat and other indigenous features of the archipelago like a hereditary monarchy, were given significant protection.

After 1963, native law in Sabah and Sarawak was given enforceability through native courts.

Power to enact laws on Islam was assigned largely to the states, but only on 25 or so prescribed areas.

Large areas of the Islamic legal system like criminal law, criminal procedure, contract, tort, banking and international trade were left to be regulated by civil law.

Syariah courts in peninsular Malaysia and native courts in Sabah and Sarawak exist under state laws, but their jurisdiction is strictly limited and defined.

To protect constitutional supremacy, the superior civil courts were given the power of constitutional review.

As a student of constitutional law and an ardent supporter of the Rukun Negara, it is my duty to examine the working of the Constitution and the conduct of the legislature, the executive and the judiciary to see whether the constitutional scheme of things is being observed and to what extent.

In some areas, the performance of our institutions has fallen short of the imperatives of the Constitution.

For example, some state enactments are encroaching on the federal list by punishing homosexuality, gambling, betting, murder, incest and theft, even though these are clearly part of the federal penal laws.

Lest it be misunderstood, the idea is not to shield wrongdoers, but to point out the proper constitutional forum where these wrongs must be prosecuted and punished.

Some state laws are attempting to violate a Muslim’s constitutional right to property by requiring that Muslim wakafs (trusts) must be mandatorily managed by state authorities. Muslims are not allowed to speak about Islam without prior written permission from syariah authorities.

Many administrative actions of Muslim authorities raise constitutional objections. There was an alleged incident of exhumation of a body for reburial.

There have been raids on churches to seize Bibles in Bahasa Malaysia or to investigate alleged proselytisation. There was a raid on a temple to prevent a Hindu wedding of someone alleged to be a Muslim. Greater discretion is required to handle these issues.

Federal syariah authorities are issuing fatwas for the whole country even though the Sultan is the ultimate authority for Islam in his state.

In relation to Muslim marriages, HIV testing is being made mandatory by some syariah authorities.

HIV testing is a good idea, but constitutionally speaking, communicable diseases are a matter of federal jurisdiction.

Syariah courts are dissolving non-Muslim marriages, converting non-Muslim infants to Islam in disregard of procedural requirements of 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.

It is the duty of a law teacher to caution against such excesses. It is not enough to have faith and fervour and good intentions.

One must also stay within the limits of one’s legal power.

Further, one must comply with all procedural requirements to the hilt.

Thus, if the raids on churches and temples were conducted by the police because of a police report, the controversy would not have arisen that the ecclesiastical authorities of one religion are violating the sanctity of the places of worship of another religion.

If the constitutional scheme of things in 1957 and 1963 is 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.

If we violate the law for a good cause, evil people may violate the law for a bad cause.

In Document of Destiny, I have pointed out the mandatory changes that are needed if we are to be an Islamic state.

Till then, our Rukun Negara and the concept of the rule of law necessitate that we must obey the law as it exists.

“Censure freely, obey promptly.”

Finally it needs to be stated that we all have multiple identities, myriad of goals and many ideals and values.

Sometimes these ideals clash. There is no one easy way of balancing them.

Those who wish to promote Islam, bring credit to it and safeguard its sanctity, may well differ with each other on how best to achieve their noble aim.

It does not help the cause to brand everyone who differs with you as a renegade, deviationist, “liberal” or “pluralist”.

Let us accept that there are many roads to salvation.

Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.