IN
the previous article, we discussed on Chief Justice of Malaysia Tun Tengku
Maimun Tuan Mat stressed on the supremacy of the Federal Constitution over all
other laws in Malaysia, including Syariah enactments.
This is due to the structure and foundation of nation’s Federal Constitution, given the country’s historical and philosophical background.
Here,
we will dissect another famed judge’s report, Datuk Seri Mohd Hishamudin Yunus
on the Federal Constitution and on why the argument that Malaysia is an Islamic
country is not premised on reality, legally speaking.
Hishamudin, a former Court
of Appeal judge
Hishamudin,
a former Court of Appeal judge, stated on Sept 10, 2020, in his article titled “Is Malaysia a Secular or a Theocratic
State?” that Malaysia is a secular one, not a theocratic Islamic state,
based on the Federal Constitution.
He
highlighted that when the then-prime minister Tun Dr Mahathir Mohamad declared
Malaysia to be an “Islamic state” in 2001, it was merely a political
declaration and nothing more!
He
further noted that the Constitutional
Proposals for the Federation of Malaya 1957, which was published in July
1957, clearly says that Islam is the Federation’s religion.
The
report went on to say that this will have no bearing on the Federation’s status
as a secular state, and that everyone will have the right to profess and
practise his or her own religion, as well as the right to propagate it, though
this last right will be subject to any restrictions imposed by state law
relating to the propagation of any other religious doctrine or belief among
Muslims.
According
to him, this underlined that the drafters of the Federal Constitution intended
the Federation of Malaya of 1957 to be a secular, not a theocratic nation.
Hishamudin
further remarked that in a speech to the Federal Legislative Council in 1958,
Malaysia’s first Prime Minister, Tunku Abdul Rahman, stated,” I would like to
make it clear that this country is not an Islamic state as it is generally
understood, we merely provided that Islam shall be the official religion of the
State.”
He
went on to say that the Supreme Court in the case of Che Omar bin Che Soh v Public Prosecutor in 1988 reaffirmed that
the British development of law in Malaya had the effect of transforming the
legal system into a secular one, and that the constitutional declaration that
Islam as the “religion of the Federation” did not mean that laws passed by
Parliament had to be equated with Islamic religious principles.
The
court went on to say that holding otherwise would be contradictory to the
Federation’s constitutional and legal heritage, as well as the Civil Law Act of 1956, which allows for the reception of English
common law in the country.
The
learned judge made a point of saying that the constitutional position of
Malaysia is that it is a secular nation, citing the example of Indira Gandhi’s
case.
To
begin with, he stated that the Federation’s judicial power is enshrined in the
Federal Constitution’s essential structure. As a result, the 1988
constitutional amendment, which curtailed and purports to destroy the judicial
power vested in the court, is null and unconstitutional.
Hishamudin
emphasised that the authority of judicial review is part of the Federal
Constitution’s fundamental framework. As a result, any attempt by Parliament to
limit or eliminate judicial review is futile. As a result, ouster clauses are
unconstitutional and void.
Moreover,
he mentioned that a constitutional amendment cannot abrogate or erase the
essential structure’s characteristics.
Finally,
because judicial review is a fundamental feature of the Federal Constitution, Art 121(1A) cannot and does not preclude
ordinary courts from reviewing the acts of Islamic institutions established by
statute to determine whether they have acted outside of their statutory
authority, including the incorrect classification of a subject as falling under
the jurisdiction of a Syariah Court.
Article 121(1A) of the
Federal Constitution
stated as follows:
‘The courts referred to in
Clause (1) shall have no jurisdiction in respect of any matter within the
jurisdiction of the Syariah courts.’
As
a result of the Federal Court’s acceptance of the doctrine of basic structure
(BDS) in Indira Gandhi, Hishamudin concluded that Parliament could not modify
the Federal Constitution to convert Malaysia from a secular to an Islamic
state. Because doing so would jeopardise the Federal Constitution’s essential
framework, which is that Malaysia is a secular state.
Tun Salleh Abas, former
Lord President of Malaysia
part
from both Hishamudin and Chief Justice of Malaysia Tun Tengku Maimun Tuan Mat,
there was another distinguished judge who had earlier mentioned that Malaysia
is indeed a secular country, with a Muslim majority population.
According
to a Malaysiakini report on July 2, 2002, the late Salleh had clearly stated
that Malaysia is a secular state, which is clearly indicated by the Federal
Constitution and laws.
So
to summarise, the Syariah courts work within their narrow jurisdiction and are
unable to expand since their power is constrained, and they risk being ruled
unconstitutional and void if they extend their jurisdiction beyond their
mandate.
Conclusion
What
conclusions may we draw from these jurists’ observations on the clash between
the Federal Constitution and the Syariah Courts?
Malaysia
is, first and foremost, a secular country. Politicians declared Malaysia to be
an Islamic state in order to achieve political gain, which is contrary to the
Federal Constitution.
Secondly,
the Federal Constitution is the country’s supreme law and any law that
contradicts it will be ruled null and void.
Third,
the powers of Syariah Courts are limited and they cannot be used to circumvent
the Federal Constitution.
Fourth,
any constitutional amendments that desecrate the Federal Constitution can be
deemed unconstitutional and void.
Fifth,
Islam is the Federation’s religion but others will have the freedom to practise
their own religion.
Finally, the Federal Constitution must be interpreted within the historical and philosophical contexts in which it was written. This is something that all Malaysians should be grateful for at all times, especially the presiding judges.
So
why are we so confounded, even though the Federal Constitution is very clear on
the role of the civil courts and Syariah courts, for instance?
The
reason is because we are being misled the entire time and we never question the
information provided to us by individuals with a vested interest to divide
us.
But let us study more about our cherished Federal Constitution rather than blaming these twisted individuals. Civil society may play an important role in educating the public on this, particularly for the younger generation who will form the future of our beloved country. – March 6, 2022.
Source: https://focusmalaysia.my/judicial-review-secularism-the-bedrock-of-the-federal-constitution-part-2/
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