Our Federal Constitution \’constitutes the federation of three states\’, of the Peninsular Malaya, Sabah and Sarawak (Singapore left Malaysia in 1965). Today, we also have three other constituencies called the Federal Territories, inclusive of Kuala Lumpur, Labuan and Putrajaya. The Federal Constitution therefore remains both our \’social and legal contract\’ for the formation of Malaysia. It is also the supreme law of the land.

Any law that violates it can be considered ultra vires; of not just the Federal Constitution itself but also the spirit of the formation of Malaysia. Therefore, I am sorry to say that I find the learned judges in the recent Subshini case uninformed and disrespectful of the Federal Constitution; which they have taken an oath to protect and preserve.

The letter by \’ Malay Law Student \’ in malaysikini makes the same point. The supremacy of the federal laws and related issues cannot be missed or overlooked by the judges sworn to protect it. The Syariah laws are only for personal and family matters, as enacted and protected by the state enactment but can be applied only to Muslims. At no point did the framers of the Constitution intend to seek to apply Syariah law on non-Muslims. Therefore, I find the judgment of the two Federal Court judges both shameful and misinformed. As \’Malay Law Student\’ argued, the Constitution is being rewritten right before our eyes by erroneous and spurious interpretation.

The Federal Constitution under its Article 11 guarantees every Malaysian citizen the freedom of religion. This right is preserved for both minors and seniors; males or females. However, presumably, in recognition of the right of families to raise their minors in their faith, the age of choice in the case of religion for a minor is 18. For voting at the general election it is 21. And, for driving a motorised vehicle it is 17.

Equal rights

This right of \’upbringing\’ does not only belong to the father, but instead is shared by both the husband and wife, or mother and father in every marriage. Does one have more rights than the other? Not if we believe in the doctrine of human rights and the equality of rights and privileges of both man and women. This doctrine of human rights has its roots in the human dignity of mankind. All revealed religions believe that at creation, God bestowed man and woman this right of human dignity and the rights of living a life of destiny with his or her Creator. This is an inalienable right; which no man or women or government or religion can take away.

The same religions also believe that the family is a God-ordained institution; with rights, privileges and prerogatives clearly defined for both parties and role assumptions. Much of this is nonetheless often colored by the cultural ways of doing things; as apparent in different matriarchal and patriarchal societies. Regardless, in none of them is the \’human dignity of all and the principle of equal rights overtly denied\’. At least, not anymore; not in this age and century.

Therefore, using simple logic and reason based on basic beliefs, it is commonsensical that both parents in a marriage can have rights of equal access to influence the child in the matter of the faith. This is simple enough to understand. This is a fact even for those of the same faith but of different theological and interpretive persuasions and their consequential nuances.

How then can the learned judges say that Subshini must go to the Syariah Court to \’seek her basic human right for herself and her offspring?\’ Are the learned judges then saying that the Federal Constitution is silent on the basic rights of both the mother and the child before the law? Does only the father have such a privilege and rights? What if the situation was reversed, and it was the mother who became a Muslim, how would anything be really different?

Come on honorable judges, please use your reason and discernment and please understand the spirit of the whole Constitution. I agree with the writer \’Malay Law Student\’ that it is judges like you who are tearing apart the original fabric of the Federal Constitution based on a \’biased and personalised reading of the Constitution\’ but also relying on weak or wrong precedents. Judges are sworn to uphold the Federal Constitution and not rewrite them.

I hope this judgment will not about bring another round of \’rhetoric and rebel-rousing\’ and get all the different parties and groups worked up. Already the Secretary of the Hindu Society has spoken up on this matter. I hope the learned judges will appreciate that \’bad decisions\’ will only make the matter more complicated and draw more attention to the issues at hand. On the other hand a sound and well argued decision, however unpalatable can and will be accepted by all because it relies on judicial wisdom of the ages; and not any simple or single case-law and precedent.

Subset rules

My only and real question to the judiciary, as the third arm of governance, relates to what then really is the supreme law of the land? What is the common basic law that applies to all Malaysians alike, whether male or female, child or adult, young or old? Surely, one does not need to be a judge to figure that one out! Maybe the learned judges do not understand set theory of mathematics. While there are proponents who want to make Islamic law the federal law of the land; that is not what the Federal Constitution says of herself.

Malaysia is clearly governed by one comprehensive set of laws called the Federal Constitution and which is the supreme set of laws. Islamic or Syariah law is the governing law for one segment of Malaysians who are Muslims; as protected by the Rulers of the States and under the final jurisdiction of the Council of Rulers. Islamic laws are therefore only a subset of the full set, called the Federal Constitution. How then can the subset rules be applied as uncommon law for a family of both, a Muslim and a non-Muslim, wherein the minors are under both of their jurisdiction and care?

Allow me to quote \’Malay Law Student\’ to cnlclude, as he/she makes the point so poignantly:

\”Our Federal Constitution clearly limits the jurisdiction of the Syariah Court to \’persons professing the religion of Islam\’. [Sch. 9, List 2 (1), Federal Constitution] By expanding the jurisdiction of the Syariah Court to non-Muslims, the decision of the majority of the Court of Appeal in the Subshini case turns the traditional view of the role of the judiciary on its head.

Here, we have a situation where the judiciary is performing the most fantastic of legal gymnastics in order to side with the state, going as far as to adopt a highly dubious interpretation of the very Constitution it was meant to protect. So severe are the possible implications of this interpretation that it would be reasonable to view the decision in the Subshini case as an attempt to rewrite our Constitution.

Irrespective of one\’s preferences or personal beliefs, it is a fact that were it not for the Constitution, most of our structures of governance including the judiciary and the syariah courts themselves would have nothing upon which to base their legitimacy and authority.

Thus, to establish a precedent where a fundamental provision of the Constitution affecting a large proportion of the population is so glaringly contradicted in such a casual fashion could be the start of a very slippery slope – one with the potential to threaten the very foundations of our nation.\”