Experts: Country’s secular constitution still reigns supreme

Sonia Ramachandran, The Ant Daily

Which law is supreme, civil or Syariah?

With controversies surrounding interfaith custody cases in the country and the latest transgender rights issue in Negeri Sembilan, the answer to this pressing question – posed at the recent Human Rights Day public forum hosted by the Association for the Promotion of Human Rights (Proham) together with the Brickfields Asia College – is now more crucial than ever.

A student had asked unflinchingly: “Is the country governed by civil law or is it going to be governed by Syariah law?”

Former Bar Council president Datuk Kuthubul Zaman Bukhari, who is Proham chairman, took the question and said Malaysia is governed by a secular constitution, not an Islamic one.

He cited Tun Salleh Abas’ judgment in the case of Che Omar bin Che Soh v Public Prosecutor to support his contention.

“If you can remember when the government made a move to sack Tun Salleh Abas and held the tribunal, you will see that some of the charges laid against him were that he was very pro-Islamic. One of the charges was that he adjourned sine die on an issue of conversion and that a lot of his speeches showed that he was pro-Islam and so on but let me tell you this, that what the government was trying to portray was not correct.

“In the case of Che Omar bin Che Soh, the accused was charged with possession of drugs. The High Court then passed the death sentence. The counsel for the accused person took up this position before the Supreme Court presided by Tun Salleh Abas. The position he took is that the death penalty is un-Islamic and that since Malaysia being an Islamic country, that would therefore mean the death penalty is ultra vires the constitution,” said Kuthubul.

Salleh’s decision, he said, was that the constitution of Malaysia is secular in nature.

“This is not an Islamic country and therefore the court rejected the argument and maintained the death sentence. This is a judgment of a Supreme Court. That judgment is still valid.

“As far as I am concerned, this country is governed by a secular constitution, not an Islamic constitution and I am the chairman of the Syariah Law Committee of the Malaysian Bar Council,” said Kuthubul.

He also touched on the open letter written by 25 eminent Malaysians that called for action for a rational dialogue on the position of Islam in a constitutional democracy.

“Having said that, if you look at what the 25 eminent people have said, they have requested the government to look into this issue because they believe any fatwas or any enactment passed by the state legislative assembly in respect of Syariah law that runs contrary to the provisions of the Malaysian constitution should be null and void. That is the provision of the law.

“If you ask me, I still believe that whatever enactment passed by the legislative assembly, whether under Syariah law or under civil law, if it runs against the fundamental liberties provided under the Constitution, then that enactment, whether Syariah or civil, is ultra vires the constitution. I am very clear on that,” said Kuthubul.

Another panellist was Global Movement of Moderates chief executive officer Datuk Saifuddin Abdullah who said that there is a vast difference between wanting something and what the actual state of things is.

“I’m a Muslim. Obviously I would say I want Malaysia to be an Islamic state. There is no harm for me to say that but at the present moment, how can I spin the constitution to be Islamic when it is not. I wish I can have a constitution that is truly Islamic. Don’t ask me what it means but I wish I can. But for the moment, I cannot behave as if the Malaysian constitution is Islamic but that does not make me a less Muslim.

“I am trying to present the case as it is. As it is, the constitution is secular. As it is, the constitution is supreme. I’m not saying you cannot amend it. Only the Quran cannot be amended,” said the Umno man.

The former deputy higher education minister said major problems arise when a secular constitution is used but people behave as if it is an Islamic constitution.

Another former Bar Council president who was on the panel at the forum was Datuk Ambiga Sreenevasan, who said that having a secular constitution is a good thing as it protects everyone.

“For example, in India, it is a secular constitution and I can tell you that the Muslims and the Christians will be very happy with the secular constitution because there is a Hindu government there now. They don’t want them going around changing the constitution to a Hindu constitution,” she said.

Ambiga added that although the Federal Constitution could be amended, it cannot be amended to the extent of changing it from secular to an Islamic constitution.

“I don’t think you can amend the constitution to the extent of changing it from secular because there is a doctrine called the basic structure document. For example, if you try and say you want to amend the constitution to remove Parliament, you can’t do it because you destroy the basic structure of the constitution.

“So you can only amend it that much. My view is you can’t amend it to change it into an Islamic constitution. You have to basically live with the constitution,” she said.

Legal experts Kuthubul and Ambiga as well as prominent leaders in society like Saifuddin may say the Federal Constitution is secular and supreme.

Judgments of the highest court in the country may also say that but with the Inspector-General of Police Tan Sri Khalid Abu Bakar taking the middle ground in cases where disputing parties obtain separate orders from the civil and Syariah courts, such statements are of no use practically.

The government of the day has to make it blatantly clear which law is supreme when it comes to disputes involving two systems of justice and parties of two differing religions.

Otherwise, it would seem that it is not the Federal Constitution or the apex courts that are supreme but law enforcement officers, who decide to act or not to act, who are.