Last Wednesday, the Federal Court handed down its judgment in the case of Latifah Mat Zin. Though the impact of the judgment on ‘hard’ or controversial cases like those of Lina Joy, Subashini and Moorthy is yet to be fully understood, it is apparent that the judgment goes a long way in helping us unravel the legal knots that have resulted in the injustices that those cases, and cases like it, serve to illustrate. It also provides us an insight into where we stand as a society 50 years into the life of this nation.
In the interests of full disclosure, it should be known that I appeared as counsel for Latifah Mat Zin.
This posting aims to explore the impact of the Latifah Mat Zin decision on the legal positions that resulted in the majority decisions of the Federal Court and Court of Appeal respectively in Lina Joy and Subashini, and also the many High Court decisions that have resulted in litigants being turned away in deference to the syariah courts.
For a more complete understanding, it will be necessary to restate basic principles and re-explore old ground. I ask for your indulgence in the interests of clarity.
The Supremacy Of The Constitution: Is Malaysia An Islamic State?
For some years now, civil society activists have been warning of an undermining of the Rule of Law through efforts aimed at securing official recognition of the purported supremacy of syariah law and the syariah legal system in Malaysia. Though the aspiration for a greater role for syariah law in the public life of Malaysians has had a place in Malaysia for many years, a strong commitment on the part of the Judiciary and the Executive to the Federal Constitution and constitutionalism had helped keep the aspiration in check.
Grounded as it was on recognition of the supremacy of the Federal Constitution and the secular status of public law, this commitment ensured the perpetuation of the multi-racial, multi-religious and pluralist Malaysia that had been the vision of those who set us on our course for freedom and a free life. It was understood then, and remains a truth now, that undue emphasis on race and religion would have a destabilizing effect on the nation. It would also result in discriminatory attitudes and practices that would undermine the national vision of an integrated and unified society.
The fact that from the outset the balance struck between the competing interests was a delicate one was not reflective of a precariousness or a doubt as to the value of the this vision. Rather, it reflected the understanding and sensitivity of those charged with the responsibility of laying down a firm foundation for this country to two basic truths. Firstly, that each and every Malayan, later Malaysian, was entitled to live his or her dream to the fullest. Secondly, that in order to do this all Malaysians had to be guaranteed the freedoms that would allow for this and the necessary diversity.
It is for this reason that upon Malaya achieving independence, a Federal Constitution that put in place a secular system of public law was entrenched as the supreme law of the nation. By public law it is meant the legal framework that puts and hold in place the system of governance and the underlying paradigm. By constitutional supremacy, it is meant that every action of the state or law would have to be tested against the Federal Constitution to ensure compliance. If the act or law were unconstitutional it would have no legal effect.
The use of the word ‘secular’ by our founding fathers was never intended to suggest an anti-religious or an anti-Islamic state of governance. Rather, it was intended to assure Malayans, later Malaysians, that Islam would not be made the basis of law and governmental action despite it being the religion of the Federation. Put another way, it was intended to reassure all Malaysians that in administering the country the Government would be persuaded only by good sense and the universal values applicable to all Malaysians. The syariah was never intended to be the basic law or benchmark against which actions or laws were to be tested.
The Federal Constitution however envisages that laws would be enacted to fulfill the personal law requirements of Muslims. It manifestly recognizes that the syariah would not be made the basic or supreme law. The Federal Constitution declared, and still declares, itself as the Supreme Law. Unlike the Constitution of Pakistan that entrenches the syariah as the basis of all law, the Federal Constitution does not accord the syariah law such status. For this reason, it is wholly incorrect to refer to Malaysia as an Islamic State.
This state of affairs was recognized by the then Supreme Court in 1988 in the case of Che Omar Che Soh which characterized our public law sphere as secular. The Court also observed that unless the Federal Constitution was amended to reflect the syariah law as the supreme or basic law, this would be the case.
The Federal Constitution has not been amended to reflect that position. Article 4(1) still declares the Federal Constitution as the Supreme Law.
(Next, Part II: The Politicisation Of The Constitution)