Lina, why the controversy ?: Historical and constitutional position of Islam judicially examined

After the Federal Court judgment, Yusri Mohamed of ABIM issued a media statement on behalf of PEMBELA. Amongst other things, he said that the decision vindicated and upheld :

‘the existing arrangement relating to the position of Islam and the Shariah courts in the constitutional and legal set-up of the country. An arrangement that has been in place since before independence and 50 years after.’

As to the position of the ‘Syariah courts in the constitutional and legal set-up of the country’, I have written on this previously in a letter to Malaysiakini entitled ‘Syariah courts are inferior to civil courts’. My views on the same now have not changed since I wrote that letter : the superior courts comprise the 2 civil High Courts, the Court of Appeal and the Federal Court. All other courts, including the Syariah courts, make up the inferior courts.

What though, of the position of Islam, a position that Yusri says has been in place ‘since before independence and 50 years after’?

Well, this has actually been considered in 1988 by the Supreme Court in Che Omar Che Soh.

It was argued in this case that as Islam is, pursuant to Article 3(1) of the Constitution , the religion of the Federation, the death penalty for drug offences, not having any foundation in Islamic law, was therefore contrary to Islamic injunctions and unconstitutional.

Tun Salleh Abas, presiding over a 5-man coram, noted that the first task of the court was to get at the meaning of ‘Islam’ in Article 3(1). He readily acknowledged that Islam was more than just a collection of dogma and rituals but a complete way of life. He then posed the question that the full court went on to unanimously answer :

Was this the meaning intended by the Framers of the Constitution?  

I would urge you to read the judgment in its entirety, which is about 2 pages.

In summary, the learned judges first noted that consequent upon British intervention :

1. The notion of the Malay rulers being God’s viceregent on Earth, which is a precept held by Muslims, was displaced and instead each Malay ruler was regarded as a sovereign within his territory;
2. By ascribing sovereignty to the Malay rulers and no longer to God, the divine source of legal validity was severed and a secular system was institutionalised;
3. All laws thereafter, including those relating to the administration of Islamic laws, were valid only if made through this secular system; and
4. The Malay rulers plenary powers were reduced to such an extent that Islam in its public aspect had become nothing more than a mere appendix to the ruler’s sovereignty.

The Supreme Court concluded, an page 56 of the reported judgment:  

‘…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. In our view, it is in this sense 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. Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter’.

It is also worth noting the following observation by Tun Salleh Abas. Justice Richard Malanjum certainly did in the minority judgment.

‘…we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.”

As we move on in trying to understand this controversy that Lina’s case has become, please remember the following, which we can take from the decision in Che Omar Che Soh:

• the Supreme Court considered the meaning of ‘Islam’ in Article 3(1). In fact, the case was principally about the impact of Article 3(1)
• the Supreme Court rejected the argument that the constitutionality of laws might be measured against Islamic laws
• the Supreme Court confirmed that since before independence our system of governance has been secular in nature. That secular system is the foundation of the Constitution
• most importantly, the judicial reminder by Tun Salleh that personal feelings should not get in the way in the process of interpretation and application of the law

In the PEMBELA media statement, Yusri also alleged that the judgment of the Federal Court :

‘should be seen as a rejection of an attempt by a certain individuals and segments to deconstruct and radically revamp of the current formula’.

You may wish to ponder on these questions:

By ’existing arrangement’, is Yusri referring to the continuity, established by Article 162, of the secular law in place prior to Merdeka? If not, who, then, is in fact attempting to ‘deconstruct and radically revamp the secular law in place prior to Merdeka?

Answers to this last question will begin to shed light on why a simple administrative procedure became a constitutional controversy.

As to what is meant by ‘secular state’ or ‘secular law’, which has often been deliberately misinterpreted to mean anti-God or anti-religion, let me state clearly that I do not use the word ‘secular’ in either of these senses.

I will reproduce here the sense of the word ‘secular’ I adopted in my ‘Islam-as I say-tion’ article.

The Cambridge Advanced Learner’s Dictionary offers the following meanings:

secular       : not having any connection with religion

secularism : the belief that religion should not be involved with the ordinary social and political activities of a country

secularise : when something is secularised, religious influence, power or control is removed from it  

If you googled the word ‘sekularisme’, you would find much writings which present a meaning plainly at odds with the dictionary meaning reproduced above. Invariably, these writings portray secularism as an ‘anti-God’ ideology. I managed to retrieve an article by one Abu Bakar bin Yang posted on the Institut Kefahaman Islam Malaysia (IKIM) website entitled ‘Sains dan Sekularisme’ which offered the following interpretation:

sekularisme: konsep penyingkiran nilai ketuhanan 

I use the word ‘secular’ in the sense that religion, or any one or more of the established faiths, should not reign supreme, wielding influence, power or control over the governance of the country. Any one or more religions ought not to be the basis for the formulation of national policy, national law-making or judicial interpretation of those laws.  By ‘secular federation’, then, I mean a system of government where governmental policies and laws passed for application to the general public would not be ‘theocracy’ or ‘any-one-or-more-religion-based’. Let us call these policies and laws ‘secular-based policies’ and ‘secular-based laws’ respectively. Henceforth, every reference to ‘secular’ or ‘secular federation’ is intended to mean a system of government where governmental policies formulated for general public application, laws promulgated for application to the general public and the judicial process of interpreting and applying those laws are not theocracy-based. 

For instance, murder is an offence in our statute books not because it is a sin by the tenets of Islam and / or Christianity or all known religions but because it is essential to the very survival of the human race and hence for the common good of all mankind that homicide without just cause be prohibited.  

Similarly, the judicial arm of government, in interpreting and giving effect to laws, must not overlook that as those laws must be ‘secular-based’, so too their interpretation and application. So, a judge, in passing sentence in respect of an individual convicted of a crime, must be guided by principles of sentencing adhered to by the judiciary as a whole, taking account of the general public view then prevailing in respect of such crime, and not his own personal convictions premised on his religious beliefs. 

Also, the executive, in formulating national policy on matters such as health and education, and local authorities in frawing up policies such as the placement of houses of worship within their jurisdiction. must be guided by considerations of well-being of the general public, and not the advancement of the precepts or cardinal beliefs of any one or more faiths.

Next : Pre-1996 judicial approach to issues of jurisdiction, fundamental liberties and matter of Islamic law 

Posted in: Lina, why the controversy?