We have now come to the point where religion is used to control every aspect of a citizen’s life, including their freedom of thought.
By Surendra Ananth
Recently, the former chief justice, Ahmad Fairuz Abdul Halim, said in a lecture that any law that was in contradiction to Islamic scriptures was unconstitutional. This was later supported by a senior lawyer named Haniff Khatri Abdulla. In essence, both of them argue that Article 3 of the Federal Constitution has the effect of incorporating substantive Islamic jurisprudence into the constitution. They say, therefore, that any law that is inconsistent with Islamic jurisprudence is unconstitutional.
Many lawyers, including a former Federal Court judge, spoke out against such a proposition. I think the topic requires a more detailed analysis in light of the rising extremism in the country.
Let us start with the basics. Article 3(1) states that, “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” The first question that must be asked is this: What is the meaning of the phrase “religion of the Federation”? In interpreting a constitution, one cannot apply ordinary principles of interpretation. Recognition must be given to “the character and origin of the instrument” and “respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language”. The historical perspective behind the phrase is, therefore, important. A constitution cannot be read literally.
The Reid Commission, the commission that put up the first draft of the Federal Constitution, stated (on Article 3(1)), “…shall not imply that the State is not a secular state”. This was reiterated by the Working Party in 1957 that noted, “This will in no way affect the present position of the Federation as a secular State”. It was on this basis that Sarawak and Sabah agreed to enter the federation. The Cobbold Commission observed, “We are satisfied that the proposal in no way jeopardises freedom of religion in the federation, which in effect would be secular”.
It was in this context that the Supreme Court in Che Omar Bin Che Soh v Public Prosecutor  2 MLJ 55 observed:
“The law was only applicable to Muslims as their personal law. Thus, 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. (See M.B. Hooker, Islamic Law in South-east Asia, 1984.) In our view, it is in this sense of dichotomy 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.”
The usage of the word “Islam” in Article 3(1) is only confined to personal law. The last sentence of the quoted passage is important. An example of a constitution where Islamic law is supreme is the Constitution of the Republic of Maldives. Article 10 of that constitution provides
“10. (a) The religion of the State of the Maldives is Islam. Islam shall be the one of the basis of all the laws of the Maldives (sic).
(b) No law contrary to any tenet of Islam shall be enacted in the Maldives.”
This is what the Supreme Court meant in the said passage. Article 3(1) does not go that far. My colleague from the Malaysian Bar, Haniff Khatri, sought to distinguish the Supreme Court decision by reportedly saying that all that was stated was that laws made by Parliament are secular. I am not sure which judgment he read, but the one that is reported states:
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