Historical and constitutional position of Islam judicially examined
Posted by Haris Ibrahim June 6th, 2007
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 :
http://www.malaysia -today.net/ blog2006/ letters.php? query=court%
27s+decision
+welcomed&amount= 0&blogid= 5
'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.
http://www.malaysia kini.com/ opinionsfeatures /47155
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.
http://www.accin- badailies. org/Che%20Omar% 20Che%20Soh. pdf
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.
http://en.wikisourc e.org/wiki/ Constitution_ of_Malaysia
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:
http://dictionary. cambridge. org/
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:
http://www.accin- badailies. org/Sekularisme. doc
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.
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