1. The Supreme Constitution
That ‘s what Article 4(1) plainly states.
‘This Constitution is the supreme law of the Federation…’.
It means just that.
In Malaysia, there is no higher law than the Constitution.
The same clause goes on to provide that any law passed after Merdeka which is inconsistent with the Constitution is, to the extent of the inconsistency, void.
Under the Constitution, only Parliament and the state legislative assemblies may pass law. Except for the limited exceptions mentioned in Article 4(2) and the emergency provisions of Article 149, the effect of Article 4(1) is that both Parliament and the state legislative assemblies are prohibited from passing any law which is inconsistent with any provision in the Constitution.
2. Power to make law for persons professing the religion of Islam
This is a power that is given under Item 1, List 2, 9th Schedule of the Constitution to both Parliament and the various state legislative assemblies.
Parliament will pass laws for the Federal Territories whilst the legislative assemblies will pass laws for their respective state.
3. The scope of this law-making power under Item 1, List 2, 9th Schedule
The Constitution has only authorized the following laws :
- Islamic law and personal and family law of persons professing the religion of Islam. You will note from the text that this general provision is followed with a list of specific subjects
- For the creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion
- For the constitution, organization and procedure of Syariah courts which shall have jurisdiction only over persons professing the religion of Islam
- Laws for the determination of matters of Islamic law and doctrine and Malay custom
At this juncture, I will ask you to note and remember that the jurisdiction to pass Islamic law and to create and provide for punishment for ‘religious offences’ is subject to the constitutional limitation that these laws and offences can apply only to persons professing, and not to persons not professing, the religion of Islam. Similarly, the Syariah courts created under laws passed are constitutionally limited in their jurisdiction over persons professing, and not over persons not professing, the religion of Islam.
Let’s set this out plainly.
Under Item 1, list 2, 9th Schedule, Parliament and the state legislative assemblies cannot make any law to apply to persons not professing the religion of Islam. They cannot give jurisdiction to Syariah courts over persons not professing the religion of Islam.
4. Part 2 Fundamental Liberties Generally
Part 2 of the Constitution comprises of 9 Articles, from Articles 5 to 13, under the heading ‘Fundamental Liberties’.
If you scrutinize these 9 provisions closely, you will note 4 very distinct categorizations with some degree of overlap between each.
The first category of liberties are those that are guaranteed only to citizens. These are to be found in Articles 9, 10 and 12. Lets call these the ‘citizens only’ category.
The second category comprises the remaining 6 Articles that guarantee the liberties in question to ‘person’ or ‘persons’. These would apply to citizens and non-citizens. Lets refer to these as the ‘person or persons’ category.
The third category I shall call ‘prohibitory’ Articles. The particular liberty is guaranteed by prohibiting the doing of certain acts. So, for example, Article 5(1) guarantees life and personal liberty by prohibiting the taking of either except in accordance with law.
The fourth and final category I shall call ‘conferring’ Articles. The particular liberty in question is expressly conferred as a right. Article 11(1) is an excellent example. The phrase ‘has the right’, confers the right.
I want to now focus on 3 Articles within the ‘person or persons’ category.
No person shall be deprived of his life or personal liberty save in accordance with law – Article 5 (1)
All persons are equal before the law and entitled to the equal protection of the law – Article 8 (1)
Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it – Article 11 (1)
Given the nature of the guarantee under Article 5 (1), I think nobody will dispute that ‘No person’ means just that. Every foreigner, Malaysian, Malay, Chinese, Orang Asli, child, adult, convict, all. Describe a person, and such a person must necessarily be included in ‘No person’. It is a guarantee to every single person on the face of this planet.
I would also say that ‘All persons’ in Article 8 (1) must also be treated in the same way as ‘No person’ in Article 5 (1). If you are in agreement, you then bear the onus to explain why, looking at the plain words of Article 11(1), ‘Every person’ should not also mean the same as ‘No person’ in Article 5(1).
In my view, ‘Every person’ in Article 11(1), then, must mean just that. Every foreigner, Malaysian, Malay, Chinese, Orang Asli, child, adult, convict, all. Describe a person, and such a person must necessarily be included in ‘Every person’. It is a guarantee to every single person on the face of this planet.
5. Article 11(1) Guarantee
3 activities are guaranteed. Profess, practice and propagate.
For the moment, let us disregard the third.
‘Right to profess’, in my view, confers on ‘every person’, the right to hold and acknowledge faith in a ‘belief system’, whether God-based or not. ‘Right to practise’ relates to the ‘belief system’ professed, and guarantees to ‘every person’ the right to participate in, live and make manifest that participation in, the doctrines of that professed ‘belief system’.
The right to profess, in my view, is both constitutionally and practically absolute. The right to practise, though, may be limited to the extent as permitted under Article 11(5).
Let me illustrate my point.
You may be a staunch Satan worshipper. Parliament may pass a law to ban Satan worshipping. The law, however, cannot reach into your heart and wrench out your belief. There is no way to stop you silently professing your belief.
As a Satan worshipper, your ‘belief system’ may advocate an annual sacrificial killing of a virgin.
Article 11(5), however, provides that the rights guaranteed under this Article do not permit acts ‘contrary to any general law relating to public order, health or morality.
By ‘general law’ is meant law applicable to ‘every person’.
Section 302 of the Penal Code makes murder an offence. It is a general law relating to public order. It applies to ‘every person’.
By virtue of Article 11(5) read together with section 302 of the Penal Code, your professed belief in Satan worship does not authorize your partaking in the ritual of virgin sacrifice.
‘Right to profess’ is absolute. ‘Right to practise’ is subject to Article 11 (5) limitations.
For the sake of completeness, you should know that the right to profess and to practice is so entrenched that even in a state of emergency, where other fundamental liberties may be suspended, these Article 11 rights cannot be touched. See Articles 149 and 150 (6A).
Let’s close this part with the following observation based on the Constitutional provisions we’ve just considered.
Parliament and all the state legislative assemblies, in exercising their powers under Item 1, List 2, 9th Schedule in relation to the creation of Syariah courts or the passing laws for persons professing the religion of Islam, cannot make laws inconsistent with Article 11.
Part 2 – Historical & Constitutional Position of Islam Judicially Examined
The People's Parliament 
Ben
June 6, 2007
Excellent. Very educating.
nonconformist
June 9, 2007
Sir, your exegesis of the Federal Constitution is true and exact.
May your tribe increase in this beautiful land of ours.
Though a Christian, I would be content to live with a whole world of fellow man of your mindset.
Paul Warren
June 10, 2007
Professing the religion..or to profess a religion is an act. In the English language it is a verb. Not a noun. A Muslim is a noun. All these provisions addressing a particular “act” of a person upon which the provision then applies do not specify any given point in time. Is there any kind of permanence in that “act”? Meaning once an act is assumed by a person, it is cast in stone and therefore, forever establishes that person to fall within a category?
When the provisions refer to “person professing the religion”, that appears to me that it is referring to the “present continuous” tense. It certainly does not refer to a past. It does not refer to the person. Neither does it refer to the profession of the religion at the time of the person’s conception.
Within the context of this argument, Lina the person is not what matters. A past “profession of a religion” by Lina does not matter. It is her present and foreeable future “professing of a religion” that matters.
Do the above cater to movements in one’s “profession of a religion”? Certainly it does. Thus, we can have Hindus, Christians, Buddhists and Sikhs moving in and out of their religion and in any court of law if this was to be a contention, the point of moot would be, as guided by the constitution, the religion that fulfills the present continuous, i.e the religion the person professes at the material point of time. If the Muslim or one born into a Muslim family does not have the same liberties, then obviously there is a failure in the language employed by our constitution. Unfortunately for me, the sanctity of the constitution has been many times trespassed into and violated. Its vulnerability and volatility leaves me little confidence that any such clarity, or as some would prefer, its ambiguity, would be left intact for long. The Islamist power brokers would certainly find it useful for them to tamper with the constitution if this is what needs to be done to close the matter once and for all. And of course we can all rely on our good members of parliament from the Gerakan, MCA, and MIC parties to fully support such a change ofcourse.