Legal experts reject calls to overhaul the country’s constitutional framework
PETALING JAYA: Malaysia does not need to abandon its existing constitutional order to strengthen Islam, as the religion is already accorded significant status and protection under the Federal Constitution, say experts.
Constitutional expert Prof Emeritus Datuk Dr Shad Saleem Faruqi said it was misleading to broadly characterise Malaysia’s legal framework as colonial, noting that local political leaders had played a major role in shaping the Federal Constitution before Independence.
He said the Alliance, comprising Umno, MCA and MIC, had submitted proposals to the Reid Commission, with Malay-Muslim political leaders exerting substantial influence over the eventual constitutional settlement.
He said this when asked about PAS president Tan Sri Abdul Hadi Awang’s call to abolish laws he described as colonial-era and place Syariah above man-made laws.
Shad said the Constitution was drafted after taking into consideration the “Volksgeist”, or spirit of the people of Malaya, rather than having colonial law imposed wholesale.
“It is not. In fact, that’s a serious misunderstanding,” he said of suggestions that Malaysia’s existing legal framework was simply colonial in character.
“This is actually a partly Commonwealth-type Constitution, but it has the essence of Islam.”
He said the Alliance had pushed for Islam’s constitutional recognition even though the majority of the Reid Commission members had initially not recommended placing Islam at the federal level.
He noted that Justice Abdul Hamid of Pakistan, one of the commission’s five members, supported the proposal, and Islam was ultimately recognised under Article 3 as the religion of the Federation.
Shad said Islam already had a “very exalted position” under the Constitution, with the words “Islam” and “Syariah” appearing about 30 times.
He pointed to the requirement for the Yang di-Pertuan Agong and Malay Rulers to be Muslims, the definition of a Malay under Article 160(2), the country’s 14 sets of Syariah courts and the application of Syariah law to Muslims in matters under the Ninth Schedule.
He also cited Article 11(4), which permits laws restricting the propagation of religious doctrines or beliefs among Muslims, as well as government support through budgets, education and the media for Islamic institutions.
“I’m all for supporting Islam in terms of its exalted position, but to say that it should replace the present laws, I don’t agree with that.
“In our multiracial and multireligious society, our legal pluralism is necessary to maintain unity and partnership with Sabah and Sarawak,” he added.
Former Malaysian Bar president Salim Bashir agreed that it was an “ill-conceived notion” to regard Malaysia’s civil laws wholesale as colonial, saying many had been enacted or substantially modified after Independence.
He said Malaysia already operated a dual-track system, with civil courts running alongside Syariah courts, while the Ninth Schedule allowed states to legislate on Islamic matters within their respective jurisdictions.
Salim said attempts to subordinate the civil legal framework to Syariah law would disrupt established legal structures in a multiracial society.
“Any form of religious framework cannot contravene the basic constitutional rights of every individual,” he said.
Senior lawyer Andrew Khoo, meanwhile, said Abdul Hadi’s proposal would amount to a fundamental alteration of Malaysia’s constitutional structure.
He said the Syariah Courts (Criminal Jurisdiction) Act 1965, one of the laws cited by Abdul Hadi, was enacted by the Malaysian Parliament after Independence and therefore could not be described as colonial-era legislation.
He also pointed to Article 3(4), which states that Islam’s status as the religion of the Federation does not derogate from other provisions of the Constitution.
“Supremacy of the Federal Constitution means that laws passed by Parliament must conform to the provisions of the Federal Constitution,” Khoo added.
