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Article 11 - setting the record straight
Malik Imtiaz Sarwar
Jul 27, 06 3:59pm
I am the current president of the National Human Rights Society (Hakam).Hakam
is a member of the coalition which calls itself ‘Article 11'. You
would have read about the controversy surrounding the road-show
currently underway. The forum in Penang held in May was disrupted by
protestors. The forum in Johor Bahru held earlier this month was
almost disrupted and was regrettably shortened, again due to
protestors. There is a significant amount of material on the web in
the Bahasa Malaysia which, while doing many things, chiefly presents
a distorted picture of not only what Article 11 is attempting to
achieve but also the way things are. These distortions have perhaps
unfortunately become the foundation of the prime minister’s caution
as reported in the media yesterday. I believe it is essential to set
the record straight, not only for the security of those concerned
but also for the sake of the nation.
The Article 11 initiative is in no way connected with the Interfaith
Commission initiative. They are separate initiatives, with very
different objectives. Unfortunately, unscrupulous parties have
twisted this state of affairs and presented the objectives of both
initiatives as not only being highly objectionable but also as being
connected. It should be borne in mind that the Interfaith Commission
initiative was aimed at making the government aware of the benefits
in establishing a statutory non-adjudicative body which could,
through recommendations, assist the government of the day in shaping
coherent policies pertaining to religious harmony. A draft bill was
endorsed by a national conference in February 2005 and, together
with a plenary statement, presented to the government. That is when
all formal efforts pertaining to the proposed commission ended.
The Article 11 initiative is, however, aimed at creating awareness
of the Federal Constitution, the guarantees provided therein and the
concept of rule of law against increasing assertions that Malaysia
is - in law - an Islamic State. In presenting the Federal
Constitution, the initiative has at no point sought to question the
status of Islam as the official religion of Malaysia – it is what
the Constitution says, after all. Neither has the initiative sought
to challenge or attack the administration of Islamic Law nor the
esteemed position of the Malay Rulers.
The initiative has however shown that the provisions in the
constitution relating to Islam have a context and, amongst other
things, are to be read in the light of the constitutional
declaration that the Constitution is the supreme law of Malaysia.
The context being suggested by Article 11 is not that of the members
of Article 11, the organisers or even the speakers at their forums.
The context being suggested is one which the courts of this country
have recognised. The suggestion that Malaysia is a secular country
has recently been wrongly attributed to persons who have unfairly
been characterised as trouble makers intent on attacking the
administration of Islam. That is wholly incorrect. The statement is
one of declared law. In 988, the Supreme Court decision in Che Omar
Che Soh, declared:
‘... we have to set aside our personal feelings because 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 …
Until the law and the system is changed, we have no choice but to
proceed as we are doing today.’
The law stands as that decision of the Supreme Court has not been
reversed or departed from. In fact, during the recent Lina Joy
Federal Court appeal, the court asked whether it was being asked to
depart from the principle in Che Omar Che Soh. Counsel opposing the
appeal answered in the affirmative, indicating an acceptance that
declared law in this country is as it stands in Che Omar Che Soh.
We must not confuse the crucial distinction between a country in
which the majority are Muslims, and is thus an Islamic country, and
a country in which the supreme law is the syariah, an Islamic state.
In Che Omar Che Soh, the Supreme Court stated:
‘If it had been otherwise (an Islamic State), 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. Far
from making such provision, (the Constitution), on the other hand,
purposely preserves the continuity of secular law prior to the
Constitution …’
As an illustration, the Pakistani constitution has provisions which
declare the syariah law as the supreme law of Pakistan, and any laws
inconsistent with the syariah as being void. The Malaysian
Constitution does not. Furthermore, our constitutional history
clearly reflects that the thinking of the alliance leaders and all
key stakeholders in the period leading to the establishment of the
Federal Constitution. That while Islam was to be given protected
status, as a matter of law and the application of law, Malaysia was
to be a secular, Westminster-style democracy. This thinking, having
gone to the establishment of the free nation of Malaya and then
later, Malaysia, with its gloriously pluralist, multi-racial,
multi-religious make up, cannot be dismissed as being mere opinion.
In view of this, it is grossly unreasonable for various parties to
have characterised Article 11 as having challenged the status of
Islam as the official religion and the status quo. Article 11 has
not done so, in fact, it has championed the law including the
declaration of Islam as the official religion of the Federation.
Conversely, it is its detractors who have, through distortion and by
preying on religious and racial sensitivities, sought to challenge
the status quo. It is this very process of mixing religion, politics
and the rule of law resulting in the ensuing confusion that Article
11 has been cautioning against. Regrettably, this process is gaining
ground.
This is not say that I or Article 11 condemn those who aspire to put
in place around them a complete system based on syariah principles.
That aim should, however, be achieved through constitutional
process, that is constitutional change. The Federal Constitution, in
as much as it is a living document, cannot be subverted through
reinterpretations inconsistent with the objectives underlying the
Federal Constitution when it was introduced in 1957. That would be
amount to a hijacking of the Federal Constitution and the social
contract it put in place.
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