First, allow me to congratulate Raja Nazrin once again for hitting the nail on the head and reminding Malaysians to protect and preserve the integrity of the Federal Constitution.

He said this when speaking to Young Malaysian Leaders in Kuala Lumpur.

The Federal Court also recently did just that: protecting and preserving the integrity of the Federal Constitution as the supreme law of this nation. In the case of Latifah versus Rosmawait/Roslinawati, the judges unanimously clarified this issue after reviewing more than 38 cases where confusion over jurisdictional interpretation had prevailed. They reinstated Constitutional integrity for the benefit of the nation. The honorable Federal Court judges concluded:

Where there is any challenge to the jurisdiction of the High Court or the Syariah Court, on constitutional grounds, the appropriate and only forum to resolve the issue is the apex civil court, the Federal Court. Accordingly, it is still for the civil courts (now clearly identified as the Federal Court) to determine, when a court\’s jurisdiction is challenged on constitutional grounds, the question whether a matter is within or without the jurisdiction of the High Court or the Syariah Court.

It is clear that to speak of Article 121(1A) of the Federal Constitution, which was created by an amendment in 1988, (which provides that the civil High Court \’shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts\’) having taken away the jurisdiction of the civil courts in all matters pertaining to Islamic law is a fallacy. Article 121(1A) was not introduced for the purpose of ousting the jurisdiction of the civil courts.

The Syariah courts are inferior courts. They inhabit a sphere within the judicial space which is inferior to the superior civil courts, that is the say the High Court, Court of Appeal and the Federal Court.

Document of destiny

Raja Nazrin further called upon all younger Malaysians to take time to read and understand the Constitution and thereby appreciate the original socio-legal contract of our foundation. In an almost immediate response, Gerakan has now promised to issue a simplified version of the Constitution for all and every Malaysian to read and understand. I hope they will build in and embellish the socio-legal definitions and historical interpretations and intentions to avoid any more confusion over jurisdictional issues.

And I pray that we all do take the time to read and understand both the original history of our independence and the social and legal agreements clarified by both the Reid and Cobbalt Commissions. It would be terribly sad, if after 50 years, we still do not know our document of destiny and our Constitutional rule of law which defines all other rules and procedures for public life of governance in Malaysia. This was the clarifying spirit of the learned Federal Court Judges who wrote the Latifah judgment; carefully arguing and defending our rule of Constitutional law and related principles of interpretation, recognizing our 50 years of contextual and interpretive independence.

What could be even worse is if we do not even understand this basic, inalienable and inviolable concepts and principles already enshrined in our Federal Constitution. That is what makes the Constitution the Supreme law of the Federation. This is the principle of the Rule of Civil Law in Malaysia further enshrined within the post-1969 revised \”socio-cultural contract\” called the Rukunegara. We can therefore never be an Islamic Law state; at least under the current Constitution and the current civil Judiciary system.

This brings me to the word \”secular;\” which is not yet well understood by most Malaysians, and I am sorry to say, this appears to include even the prime minister and his deputy; both Umno leaders. Otherwise, they are simply \”playing politics with the future of this nation.\” Shame on them! The word secular, in terms of our Constitution, simply means that the spirit of the law of the nation is not inspired and defined based on simply one religion, but instead represents all the good values which are universal which are agreed to and approved by our democratic polity.

In any democracy, such laws can and will be adjusted and modified by changing public morality and the majority views from time to time. But, that does not allow the rights and privileges already protected and enshrined by the Federal Constitution as supreme law to be redefined by non-universal rules of any sectarian majority, simply by the back-door and without a two-thirds majority and a constitutional amendment.

This concept of secular is therefore neither anti-religious nor anti-theistic. As I have argued before, the concept of secular can simply be understood as a mathematical concept of the set and subset. The Federal Constitution and the Rukunegara are our sacred socio-legal concepts of common and civil law in Malaysia. They are defined by common and shared moral and ethical values. These may have their origin in the spiritual but that relationship is not explicit and need not be. But, it does simply mean that in the public spaces of governance in Malaysia; we are civil and secular and the constitutional air prevails. This means universal values guide, inspire and give meaning and interpretation to our public conduct and our way of life; whether for Muslims or non-Muslims.

But that does consequently mean that our public space morality cannot be defined by one sectarian and particular interpretation of Muslim Syariah law. State enacted Syariah laws and their interpretation are also guided by the Constitutional rule of law. The Constitutional provision in Article 3 and the explicit allowance for Islam (without distinction) to be \’the\’ religion of the Federation was only meant to recognise that in terms of ceremonial and official public activities, and especially where it related to the Council of Malay Rulers, only Islam will be the religion of consideration and use. Here, I must emphasise that the original framers never used the word \”official\” religion and the late Prof Ahmad Ibrahim and architect of the Article 121 (1A) amendment always emphasised this when I was his student of Constitutional law in the University of Malaya.

The Syariah laws relating to Islamic jurisprudence is limited to personal and family law and other explicit provisions that are legal and Constitutional, not otherwise. The Federal Court in the Latifah case re-emphasized this interpretation and explicitly refers to Islamic Court and such jurisprudence as \”inferior courts.\” It simply means that such laws, while parallel for the purpose of Muslims, does not and can not override out Civil Law jurisdiction of the Constitutional provisions and subsidiary laws when dealing with non-Muslims.

Official religion

I specifically refer to the Lina Joy, Revathi and the Subashini cases. Another specific problem I have here is that at a recent DAP \”Forum on the Islamic State,\” Opposition Leader Lim Kit Siang formally argued that it was okay to accept the concept of \”official religion\” of the Federation.

Even the lion of DAP, Karpal Singh has accepted this term, \”official religion of the Federation.\” I cannot accept it because it means much more than was originally intended, and the framers were very well aware of this. For those interested in a well researched historical perspective, please refer to a published article by Joseph M Fernando in the Journal of Southeast Asian Studies dated Jan 6, 2006 on the issue of \”The Position of Islam in the Constitution of Malaysia.\”

Therefore, while other religions of the Federation are permitted and in fact encouraged, they may not be used for such public, official and ceremonial purposes, at least in the states of Peninsular Malaysia. This is not as explicit in the Federal Territories or in the case of Sabah and Sarawak.

As an example, for the swearing-in of the Chief Minister of Penang, the formal ceremony can include a Doa Selamat as a symbolic gesture of the Rukunegara principle that we all believe in God. But, even then in Sabah and Sarawak, there is really no provision for such an interpretation of a state religion. This is why the word used for \”God\” in the Iban bible, translated from the original Hebrew word, \”Allah or Elohim\” being prohibited by the Federal Ministry of Home Affairs is a source of deep hurt by the peoples of Bumiputra Christian heritage in Sabah and Sarawak.

This religion of Islam, as the religion of the Federation, can be used for ceremonial purposes only, but cannot be used for much else; whether as a dress code of Universities or even as compulsory attire for non-Muslims for use even in Istana Negara! That means also, I believe, that the bible or any other sacred text will not or cannot also be used for any formal public and ceremonial occasion involving the Malay Sultans of Peninsular Malaysia. Therefore, such a symbolic Islamic concession was meant only for ceremonial purposes but never for public governance or state administration.

The only other and even more explicit exception is in the case of the application of Syariah law as it specifically applied to Muslims. As empowered and limited by the Federal Constitution, State Enactments can write these Syariah laws as Muslim laws and practice where it relates to personal and family matters. But, even here, as the recent Federal Court ruling states, these State Enactments are in fact subsidiary to the Constitution as the Supreme Law of the Federation; with the explicit limitation of these to private faith and family matters. Islamic laws in Malaysia were never designed to become public law. The recent Federal Court decision, while upholding the supremacy of the Federal Constitution, in the specific case also decided clearly in favor of state-enacted Syariah interpretation of Islamic law when it related to family matters; and in this specific case was related to Muslim inheritance.

The prime minister was therefore, to me, not clarifying anything when he gave the politically neutral interpretation of the religious character of this nation. The Spirit of Merdeka contained in the formation of Malaysia is that she is a secular Constitutional Democracy with a system of Monarchy protected and preserved by that same Constitution. And this same Monarchy is charged with protecting and preserving the function and operations of the Islamic religion.

While Malaysia will always remain a Malay nation in her foundation, and the religion of the majority of Malays will always be Islam, and by constitutional definition ethnic Malays will always be Muslim; this religion of the Malays is not meant to be the official public religion of the nation. It is the original religion of the Council of Rulers as Heads of the Peninsular States and they are given explicit authority and inspiration to guide and lead on all matters Islamic; including for the Straits Settlements and Federal Territories, when acting as the Yang Di Pertuan Agong.

Rather unfortunately, therefore, what has happened after the 1988 Constitutional amendment of Article 121 (1A) was it created more ambiguity rather than clarity when such overlapping or unclear jurisdictional matters were taken out of the Federal Constitutional context and given an Islamic spirit. Some bad decisions and poor precedence were set in place, which \”enlarged the backdoor jurisdiction of the Islamic laws,\” but these will not and cannot fully align with our Constitutional supremacy and spirit.

The ambiguity and confusion was created by \”over-zealous misinterpretations based on Islamic State assumptions\” regarding the governance of this country\’s laws. Therefore the recent Federal Court case is much relief for clarifying the limits of the governance jurisdiction of each set of laws. But, I do also hope that the Federal Legislature will take heed of the views of the learned Federal Judges, as the third arm of governance of this nation, and seek to create new laws which clarify current confusion based on Civil Jurisprudence of the Federal Superior Courts.

Allow me finally to quote a specific case to make my point very real and operational on the ground. Church buildings or congregational halls we often call churches exist in all jurisdictions of the Federation. When these (in some cases they are more than 50 years old) congregation halls need to be expanded, the leadership of the congregations go through the normal application processes for building renovations based local governance bylaws.

These local government institutions operate under the state administration but are in fact the third tier of governance in Malaysia. They exist based on the Federal Constitution Law and the Local Government Act of 1965 (?). Within this secular context of Constitutional law and the preservation of the religious liberties of all other religions protected and preserved by the Federal Constitution, my resultant question from my earlier arguments to the 50th Anniversary Federal Government is, \”what is the legal basis for the Local Authority to administratively require our \”submitted building plans to be channeled to the State Religious Committee under the State Administration for their no-objection vote?\” This fact is therefore one of many \”administrative changes\” effected after the 1988 amendments and the subsequent resultant jurisdictional confusion created by State Islamic law as public law. It is therefore not just individuals like Lina Joy or Revathi or Subashini who have come under bad administration of our freedom of religion provisions, even legitimate corporate entities like our Church and now more evidently, Hindu temples, have more recently suffered the same fate. It is for this reason that the Federal Government must begin to deal with and address such issues before it is too late.

Herein lies the very secular nature of our Constitution and which must be defended as originally defined and cannot become subject of the whims and fancies of local administrative of religions authorities.

So, my consequential question to the AG, as our Chief Legal Officer of the nation, \”what is the civil law basis for the State Religious Department of Islamic Affairs to begin to define whether a \”Christian congregational hall is appropriate or not?\”

State Enacted Islamic jurisprudence must be limited to personal and family matters and cannot become backdoor procedures to create \”a public existence in the planning and approval process for building approvals.\” The secular nature of our Federal Constitution does not allow this and this violates the original spirit of the Federation of Malaysia social and legal contracts. Back door Islamisation cannot be justified based on the Federal Constitutional provisions. State enactments must remain limited to the original provisions in the Constitution and their legal schedules and lists. They cannot take a life of their own, independent of the Constitutional legal provisions. That is what it means that the Federal Constitution is the supreme law of this nation.