Constitutionally Illiterate!

23 03 2017

“We cannot accept Shariah law, for Malaysia already has a supreme law, which is the Federal Constitution. Article 4 of the Constitution declares it simply: ‘This Constitution is the supreme law of the Federation’,” Baru said as reported by Borneo Post Online with the tittle, “Baru concurs with Abg Jo on concerns over proposed amendment to Act 355”.

Constitutionally illiterate! This senseless statement makes me wonder if the PKR leader knows what he is trying to say. In fighting against a law that has nothing to do with him as a non-Muslim, the PKR man said, “Hadi Awang and Umno may say this is Syariah and not hudud, but as far as I understand it, hudud is part of the Syariah and the proponents had said this bill was to pave way for hudud punishments in Kelantan. This attempt at RUU355 is but a political contest between Umno and PAS to champion the implementation of Syariah Law in Malaysia.”

Yes, Article 4 of the Constitution declares that the Federal Constitution is the supreme law of the Federation, therefore the Shariah Court system is constitutional because Article 121(1A) confers the Syariah Courts systems as part of the Malaysian legal systems. Federal Constitution as the Supreme law of the land must not be misinterpreted and must be read as a whole.

In the judgement of the Federal Court case, Loh Kooi Choon v The Government of Malaysia [1977] 2 MLJ 187, the then Federal Court Judge, DYMM Almarhum Sultan Azlan Shah stated that, “Constitution as the supreme law, unchangeable by ordinary means, is distinct from ordinary law and as such cannot be inconsistent with itself”. Hence, it is wrong for Baru Bian to cherry-pick what he likes or bypassing other Articles in order to make his own interpretation to suit his argument and agendas.

If Baru Bian respects the Article 4, he must respect the fact that the Article 3(1) that says, “Islam is the religion of the Federation” for it is placed before the Article 4, hence stating the importance of Article 3. In the Court of Appeal’s judgement of the case, Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri and Kerajaan Malaysia, the then Federal Court Judge, Tan Sri Mohamed Apandi Ali explained that , “The Article places the religion of Islam at par with the other basic structures of the Constitution, as it is the 3 rd in the order of precedence of the Articles that were within the confines of Part I of the Constitution”. So by denying the acceptance of the Shariah laws, Baru Bian is literally against the Article 3(1) and therefore he is also against Supreme Law of the Federation.

If Baru Bian reads the Federal Constitution, he’ll understand that as the supreme law of the land, the Constitution defines the principles of our country, the sovereignty of Islam as the religion of the country, the sovereignty of the Rulers, the rights of the people, judicial system and other important laws but the Federal Constitution does not describe punishments and offences. It is the judiciary that interprets and applies the law in the name of our country through Act, Ordinance, Enactment and others. And there is no unconstitutional elements in the proposed amendment of the Act 355 because the Act 355 is an existing law, the proposed amendment is only to increase the Syariah punishments which are currently too low and not to introduce new sets of laws or seeks to widen the scope of its current jurisdiction.

Furthermore has Baru Bian forgotten or unaware of Article 11(3)(a) which says every religious group has the right to manage its own religious affairs? After all, why must the non-Muslims try so hard to deny the constitutional rights of the Muslims to manage our own religious affairs as granted by Article 11(3) of our Federal Constitution?

This is not a Hudud Bill and it is impossible for the amendment of Act 355 to enable the implementation of Kelantan’s Syariah Criminal Code II (1993) Enactment 2015 because it is not within the power of the Syariah Courts to implement capital punishment nor the jurisdiction over offences punishable under the Penal Code.

So, please stop debasing the Federal Constitution and as a leader, please at least learn to respect and uphold our supreme law.

 

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21 responses

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23 03 2017
Syed Hussein

Reading any book, news print, The M’sian Constitution et cetera does not necessarily translate to understanding the true context of words therein.

One may/can understand the “context”.

However, if the particular individual, for any reason whatsoever, refuses to “agree” with the “context” it is his/her right.

Particular individuals who throw “spanners into the works” to achieve his/her personal agenda, including “political agenda”, is … your know what!.

His/her CREDIBILITY comes into question.

The specific entity bestowed with powers to interpret The M’sian Constitution, with finality, is the Apex Court … The Federal Court.

When one questions the interpretations of The Federal Court, without sound legal basis, it reflects on the mala fide intention of particular individual and/or entity

Case rested.

* Note:- Students aspiring to qualify as a lawyer “do not study law”, they “read law”. Why? (For the uninitiated … Google “read law”.)

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23 03 2017
ahmadalikarim

Dear Tuan Syed Hussein,
Thank you for writing. During a talk on Act 355 at the UIM recently, a non-Muslim speaker who is a lawyer shocked me by claiming that Articles 3(1) and 11 of the Constitution are the proofs that Malaysia is a secular country. During the Q and A, I asked him:
1) Define secularism and explain how Article 3(1) can be used as a proof that Malaysia is a secular country when it is the Article that enshrines Islam as the religion of the country (which is opposed to the definition of secularism).
2) Explain what does he mean by saying that it is unfair for the Muslims to also be governed by the Syariah law when in the Federal Court judgement of the ZI Publications Sdn Bhd and Anor v Kerajaan Negeri Selangor, Tan Sri Md Raus Sharif said that it is clear that it was the intention of the framers of our Constitution to allow Muslims in this country to be also governed by Islamic personal law.
His answered that the answers to my questions will be too long and he cannot compress them so he cannot give me the answers. In another words he avoided answering my questions which I think is unfair. He talked about equality, but he does not respect my rights for the answers.
I really hope that people will stop debasing the Federal Constitution and learn to respect and uphold our supreme law.

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