Malaysia is a constitutional democracy and was designed to always be more than a confederation of nine Malay Muslim states. The new nation was meant to be greater than the sum of parts of the 11 constituent states at the time.

This critical point appears to have been sadly missed by many public authorities concerned with public affairs as legislated and enshrined by the Federal Constitution, our only written and single common documentation for the vision of the Malaysian nation. It speaks as the supreme law of the land.

To my mind and heart, there is no shadow of doubt about what this meant to all the peoples at midnight on Aug 31, 1957, when Merdeka was declared. It meant Malaya (now Malaysia) had become a new nation, with a wholeness which must be greater than the sum of her parts.

It also meant that the Federal Constitution defines all guidelines (written and unwritten) for the nature and nurture of the governance processes of our nation-state. Such a democracy began legitimately with that 1957 institution of the political democracy.

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Much like elsewhere in the world, the written constitution is the supreme principle and rule of law in governance, except as otherwise stated. This framework defines the scope, coverage of issues and depth of meaning given to the various articles of the constitution.

Within the federal and state lists, both prerogatives and privileges are quite well encoded in the constitution. But the Federal Constitution reigns supreme. There is no other framework for a review of all the constituted relationships of history, other than the bases already recognised in the constitution. This must be the only reading of our constitutional history and the originating context of the Malaysian nation.

Spirit of 1957

Consequently, in reading and interpreting Article 11 of the constitution for example, we cannot miss out what Article 3 says and already underwrites. Neither can we miss out or forget the history of the process of the Social Contract formation. The Federal Constitution and all its Articles define our Merdeka Agenda of becoming integrated with integrity as currently arranged and formulated, and which reflects the original spirit of the 1957 Social Contract.

The institution of the Yang DiPertuan Agong or King did not exist before the Federal Constitution was inaugurated and is probably the most classic example of why the nine rulers of the Federated and Unfederated Malay States agreed to this new constitution in the first place.

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Likewise the institution of the Rulers\’ Council did not exist before the Federal Constitution in its current form. The spirit of the 1957 Social Contract is also contained in written documents like the Rukunegara or unwritten ones like the formation of the political alliance forged before 1957 and which thus became the basis of the first government.

These documents, including the vision of the original leaders and their negotiating grounds and principles, all make up the legacy of the 1957 Social Contract. Even newer ideals like Vision 2020 embellished this historical and institutional framework. We cannot forget this context in the dealing with of any \’text\’ in governance.

Within such a rule-based democracy, Article 11 says there is freedom for the practice of other religions while Islam remains the religion of the federation. My Constitutional Law professor, the late Prof Emeritus Ahmad Ibrahim, always ensured that we students of the Malaysian constitution understood what was meant by the word \’the\’ and why the drafters preferred not to use the word \’official\’.

The framers were well aware of the nuances and consequences of legitimising such an \’official religion\’, as opposed to describing the religion of the majority. The wisdom of this is becoming very clear now but only if we understand the nature of the Federal Constitution as a supreme set of rules. Based on the constitution, Syariah laws are state enactments meant for the practice of Islamic personal and family law only.

Issue of identity

Therefore, I am personally very shocked by the Shah Alam Syariah High Court decision in the Rayappan Anthony case. It decided that he will be buried according to Muslim rites as he had converted in 1990.

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Is this the issue as simple and straightforward as that? Is this really not an issue of the identity of a citizen? Can some one please educate me how the Syariah Court can rule on the faith of a practising Christian (and former Muslim) at the time of his death?

Correct me if I am wrong, but is not the identity of a Malaysian defined by the particulars we submit to the National Registration Department? If not, then why has Lina Joy taken the trouble to go to the Federal Court with her case?

This department is part and parcel of the laws and regulations defined by the Federal Constitution in clarifying the qualifications and identity of a citizen under our constitutional democracy.

In the Rayappan case, media reports said his identity card stated he was a Christian at the time of his death and that he had reverted to being a Catholic by legally declaring this to the department. It concurred and even returned the IC duly revised on May10, 1999. The department with the necessary authority to declare his identity accepted his deed poll which made a statutory claim for him to revert to being a Christian.

How then can the Syariah Court subvert this Federal jurisdiction and base its decision on a previous time frame? Was this not also the real issue at the time of the death of M Moorthy ?

Why is the Syariah High Court blind to the legal issues and so quick to make judgment when both the Lina Joy and Moorthy cases have not be fully decided upon? Why did it not wait for the relevant civil authority to decide the case, which is a question of identity? Would it not have been wise to wait for many perspectives to be heard instead of rushing to a decision?

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I fear that we have another Moorthy case in the making. On that occasion, there were sufficient doubts about due process to allow the wife and family to take the matter to the civil court.

In the Rayappan case, it would seem to me that the Syariah Court has wrongly taken over the administrative governance function of a federal department and ruled on a matter which is outside its jurisdiction. If the department does not have jurisdiction, it would not have deemed his application to be correct and acceded to the request.

What is most disturbing to me are words and comment of the Jais officer who insulted the Registration Department and MyKad with the following words as related by lawyer A Sivanesan and Rayappan\’s daughter Jeya Mary ( The Sun , Dec 1): \”When we showed the Jais officers the MyKad, they told us itu Mykad boleh koyak dan buang (you can tear up and throw away the Mykad)… They said the details in it are invalid.\”

We are not in an Islamic state or in a Malay-Muslim state where the MyKad has become an invalid document. Can you imagine the audacity, arrogance and ignorance of the Jais officer who speaks like that?

Currently the MyKad is the most security-controlled identity document we hold as Malaysians. The government is even trying to give MyKad the status of an international travel document, like our passport.

How can then one Jais officer insult and demean the federal department and all thinking Malaysians with such careless statements?