Posted by Haris Ibrahim June 5th, 2007
1. The Supreme Constitution
That 's what Article 4(1) plainly states.
'This Constitution is the supreme law of the Federation.' .
http://en.wikisourc e.org/wiki/ Constitution_ of_Malaysia
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.
http://www.accin- badailies. org/Article% 204.PDF
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.
http://www.accin- badailies. org/Item% 201%20List% 202%209th% 20Schedule.
PDF
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'.
http://www.helpline law.com/law/ constitution/ malaysia/ malaysia02. php
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.
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