by Janice Ooi
Malaysians are no strangers to controversial remarks – so when the former Chief Justice,
Tun Ahmad Fairuz Ahmad Halim, asserted that laws which contradicted Islamic principles set out in the Al-Quran and Sunnah would be void, it seemed just like any other day in sunny Malaysia – after all, we’ve heard worse. But underlying the normalisation of such remarks is a more sinister notion – the inherent tension that exist in our dual legal system, and religious tensions in sunny 1Malaysia.
The arguments made
Tun Ahmad Fairuz, a man who is no stranger to controversy since the Lingam Tape incident, said in a lecture on “Islam as the Law of the Land” that “anything which is in contradiction to Islam is unconstitutional” – citing Article 3(1) in the Federal Constitution which states that “Islam is the religion of the Federation…” as the main argument behind his statement.
He argued that Article 3 and 4 in the Federal Constitution must be read together – meaning that Islamic law is the second most supreme legislation after the Constitution. Article 4 states that “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”.
He further cited a Privy Council ruling in Singapore which said that a law can only be valid if it conforms to the fundamental rules laid down by English law – and extended that argument to the idea that Malaysia accepts the same principle, but “as Islam is the religion of the Federation, surely the fundamental principles of the law should be based not only on English Common law, but (also) on the Shariah law”.
Of course, his statement is not without support by organisations and individuals – especially in light of the controversies surrounding amendments to Act 355 (which could be an entire article by its own) – as they view his statement as aligning with their own principles on the position of Islamic law in Malaysia. However, as one could have reasonably expected, his statement came under intense fire from various lawyers in the country – some calling it flawed, “weird” and even misplaced and this is what we will be examining in the following section.
Dr Abdul Aziz Bari, a constitutional law professor at the University of Selangor, argued that such contentions with far-reaching implications must be made through constitutional amendments – and cannot even be made by judicial authority.
Others, like Prof Shad Saleem Faruqi, an Emeritus Professor of Law at UM, argued that while Article 3(1) does state that “Islam is the religion of the Federation” and does give Islam a special position over other religions in the country, it does not mean that Malaysia is an Islamic theocracy or that Islam is the litmus test of the validity of any legislative or executive measures. Echoing similar sentiments, former Malaysian Bar President, Christopher Leong also argued that Article 3 is merely intended to describe the country’s official faith.
Further, Article 3(4) in the Constitution states that “Nothing in [Article 3] derogates from any other provision of this Constitution”, which in simple terms, merely means that Article 3 does not diminish the force of any other Articles in the Constitution. Retired Federal Court judge, Gopal Sri Ram, also commented that Tun Ahmad Fairuz had read Article 3(1) in isolation and, by that extension, misread the constitution.
Of course, the idea put forward by Tun Ahmad Fairuz is not that Islamic law is the most supreme, but that Islamic law is second most supreme – which is an important distinction to make as it could potentially satisfy Article 4 by maintaining that the Constitution is the most supreme law in the land. However, there is force in the argument that it merely creates confusion because the two sets of law, which are very distinct in nature and purpose, cannot both be the “fundamental set of laws” simultaneously. Indeed, this would lead to complexities in legal interpretation and would be destructive of the federal-state division of powers in Schedule 9 of the Constitution which provides that Islamic law only applies mostly to personal law as legislated by the states, as forwarded by Prof Shad Saleem Faruqi.
Various lawyers also turned to the case of Che Omar bin Che Soh v Public Prosecutor  2 MLJ 55 [SC]. Counsel in Che Omar argued that the imposition of the death penalty for the offence of drug trafficking was contrary to Islamic injunction, and therefore unconstitutional and void “because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles”. The 5-panel Supreme Court at the time unanimously rejected the argument as it would be “contrary to the constitutional and legal history of the Federation and also to the Civil Law Act”. They concluded that “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 the law”.
The decision in Che Omar Che Soh is still binding law. The idea behind the decision, which effectively stated that a law inconsistent with Islamic scriptures was valid because Malaysia had a secular constitution, has led commentators to the reasonable conclusion that “the litmus test of a law’s validity is the Constitution and not the precepts of Islam”. They also point out that Tun Ahmad Fairuz had conveniently ignored the judicial precedent established in Che Omar’s case as it was not mentioned in his lecture.
There is also an argument from the side of history, that is the character and origin of our Constitution. During the drafting of the Constitution, the Alliance Party submitted a Memorandum to include what would be known as Article 3(1) which was not in the original draft, stating that “The religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religions, and shall not imply that the State is not a secular state”. In fact, there doesn’t seem to be indication of any other implicit meaning of that Article 3(1). This act, done with full understanding of all the members in the Alliance Party, must hold some weight in light of the Malaysian social contract theory that people love to advocate.
It is also rather interesting to explore the Privy Council ruling in Singapore that Tun Ahmad Fairuz cited. The decision could surely be none other than Ong Ah Chun v The Public Prosecutor  UKPC 32 (for a summary of the case, it might be helpful to read the Wikipedia page on it, which is rather comprehensive of the issues involved). The case concerned the constitutionality of the death penalty in Singapore. In that case, it was held that the word “law” in Article 9 in the Constitution of the Republic of Singapore – which guarantees the right to life and to personal liberty – must be taken to include fundamental rules of natural justice as it formed “part and parcel” of the English common law that was in operation in Singapore at the commencement of the Constitution.
Tun Ahmad Fairuz’s interpretation of the decision was that, taken in Malaysian context, the fundamental principles of Malaysian law must include Islamic principles found in the Shariah due to Article 3(1). It is striking, and slightly amusing, to note that he – in the same speech – also lamented that Malaysia’s laws are “antique” as it was based on English common law and described those who practise it as “being colonised in their minds” while at the same time using an English Privy Council decision as authority. Tun Ahmad Fairuz had also previously advocated, in 2007, that Sections 3 and 5 of the Civil Law Act – which permit judges to import English common law to fill in the country’s judiciary gaps – be abolished on similar grounds, understandably evoking alarmed responses. It seems odd that he is now trying to import English authority into Malaysian legal matters.
When you look at the various events that have cropped up over the years, you will find that the prevailing theme in any controversy always stems from a tug-of-war between progressive values and conservative values. For each grassroots movement that advocates for equality for various classes, be it on grounds of sexuality, political transparency, human rights – there always is some form of backlash, whether through bans imposed on their events, enforcement of procedural registration as an indirect ban on gatherings, or multiple arrests on allegations of sedition which have been criticised as being used to silence critics. All these acts have been, sadly, achieved through the law.
When the fundamental laws of the land are taken to be founded upon a particular religion, it marginalises other religions and seems to formally institutionalise the idea that the values purported by other religions (or even philosophical schools of thought, if you are so inclined) are inferior. This is not to say that Islamic values and principles are bad – far from it. One can support the religion, yet reject a move to instil religious fundamentalism into the very fabric of society.
Malaysia is a multi-racial and multi-religious society – and with that status quo comes the responsibility to recognise every culture equally, and it is for that very reason that our laws are secular. As a commentator wrote, “to imply that a specific religion represents the tradition of a multi-religious society is inherently illogical”.
The way forward is to embrace this diversity we so-often parade to non-Malaysians – and this can only be achieved in a secular state where the values and principles enshrined in our law, the very foundations of our society, are values and principles common to all of us.
Religion is a force for good – ultimately, all religions promote positive values. However, religion is becoming increasingly politicised and used as a weapon, not to bring us together, but to divide and marginalise sections of society. In particular, a move towards religious fundamentalism brings Malaysia closer to a theocracy where it will, by definition, exclude pluralism – religious or otherwise, and this is particularly harmful to a society that aspires towards integration, not segregation. 1Malaysia is a great slogan, but we cannot merely use it as a marketing tactic or just lip service.
Janice is a second year law student at UCL.
Both cynical and idealistic, she is one contradiction away from being the living dead (as all law students are).