When a Lawmaker Fails to Understand the Law

23 10 2018

The proficiency of a government lies in the hands of its ministers and lawmakers; therefore, the quality of the government’s party politicians are very crucial not only in ensuring effective policy making but also to install trust, respect and support from the people.

As in their oath of office, the Members Of Parliament (MP) pledge to “memelihara, melindungi dan mempertahankan Perlembagaannya” (maintain, protect and defend its Constitution), it is crucial for the MPs to understand the Constitution or at least to do their homework and seek for proper advises before making statements regarding the Constitution.

Recently, a recording of a Parliament session on the 15th October 2018 where YB Kasthuriraani a/p Patto, the ruling party’s MP of the Batu Kawan constituency who thought that ‘Syiah’ and ‘Ahmadiyah’ are names of religions (“… individu-individu yang menganut agama-agama seperti Syiah, Ahmadiyah”) had spread across the social media.

Many pointed out that the MP had interfered into the internal matters of another religion; hence had gone against the rights of the religious group in managing its own religious affair as conferred by the Article 11(3)(a) of the Federal Constitution.

When I listened to the recording, not only I was shocked by her above statement, but I was totally aghast by her lack of basic Constitutional  knowledge of the Constitution that she had pledged to “memelihara, melindungi dan mempertahankan”.

According to the Parliament Hansard, the MP says:

Salah satu syor juga adalah untuk menghentikan penangkapan dan penahanan individu-individu yang menganut agama-agama seperti Syiah, Ahmadiyah, Bahai dan sebagainya, mengikut perkara 11 dalam Perlembagaan Persekutuan yang menyatakan, “Agama Islam merupakan agama persekutuan dan agama-agama lain boleh diamalkan dengan aman dan damai, di mana-mana bahagian Persekutuan”.

Now, the MP claimed (in Bahasa Melayu) that the Article 11 of the Federal Constitution states that Islam is the religion of the Federation and other religions may be practised in peace and harmony, in any part of the Federation! (Please check the video at the end of this article).

Below is the original text of Article 11, followed by the Bahasa Melayu translation by the Attorney General’s Chambers.

Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.

Tiap-tiap orang berhak menganuti dan mengamalkan agamanya dan, tertakluk kepada Fasal (4), mengembangkannya.

Some people may think that what was claimed by the MP as Article 11 may sounds rather similar to the Article 3(1) that states:

Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.

Islam ialah agama bagi Persekutuan; tetapi agama-agama lain boleh diamalkan dengan aman dan damai di mana-mana Bahagian Persekutuan

But, if we pay full attention to her statement, there is a huge difference between the MP’s version of the Article 11 and the words written in the Article 3(1).

The MP said “…dan agama-agama lain” as recorded by the Parliament Hansard” and the video recording of the Parliament session whereas the Article 3(1) says “… tetapi agama-agama lain”…; meaning the word “tetapi” (but) was changed to “dan” (and).

For a layman, this grave mistake may seems unnoticeable and unimportant, but from the legal point of view, the changed of the word “tetapi” to “dan” had positioned other religions to the same level as Islam, which is a distortion of the truth not only to the Article 3(1) but also to the Federal Constitution.

The matter cannot be looked as merely a small mistake, as each word in the Constitution brings important meaning in the interpretation of the Supreme Law of our nation.

The use of the word “tetapi” in the Article 3(1) signifies the supreme position of Islam as the religion of the Federation as compared to other religions in Malaysia.

Hence, the intention of the phrase, “but other religions may be practised in peace and harmony” is to protect the sanctity of Islam as stated by the then Federal Court Judge and former Attorney General, Tan Sri Mohamed Apandi Ali in the Court of Appeal judgement of Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri & Kerajaan Malaysia:

[33] In short, Article 3(1) was a by-product of the social contract entered into by our founding fathers who collectively produced the Federal Constitution, which is recognized as the Supreme Law of the country. It is my judgment that the purpose and intention of the insertion of the words: “in peace and harmony” in Article 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any possible and probable threat to the religion of Islam.It is also my judgment that the most possible and probable threat to Islam, in the context of this country, is the propagation of other religion to the followers of Islam. That is the very reason as to why Article 11(4) of the Federal Constitution came into place.

The phrase also proves that at the same time, people of other religions are allowed to practise their religions as long as they obey the laws and not to do things that has “the potential to disrupt the even tempo of the life of the Malaysian community”.

In the same judgement, Tan Sri Mohamed Apandi Ali also states:

[42] It is my judgment that, based on the facts and circumstances of the case, the usage of the word “Allah” particularly in the Malay version of the Herald, is without doubt, do have the potential to disrupt the even tempo of the life of the Malaysian community. Such publication will surely have an adverse effect upon the sanctity as envisaged under Article 3(1) and the right for other religions to be practiced in peace and harmony in any part of the Federation. Any such disruption of the even tempo is contrary to the hope and desire of peaceful and harmonious co-existence of other religions other than Islam in this country.

This is in accordance with the teaching of Islam as Islam does not oppress other religions, as said in Verse 256 of Surah Al-Baqarah:

There shall be no compulsion in [acceptance of] the religion. The right course has become clear from the wrong. So whoever disbelieves in Taghut and believes in Allah has grasped the most trustworthy handhold with no break in it. And Allah is Hearing and Knowing.

Worse, YB Kasthuriraani claimed that the Article 11 conferred Islam as the religion of the Federation.

That means she downgraded the importance of the position of Islam as the religion of the Federation which actually is conferred by the Article 3(1) that is in Part I to Article 11 which is in Part II of the Constitution.

Tan Sri Apandi Ali said in the same judgement:

“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”

Being placed as the third in the order of precedence of the Articles signifies the status of Islam as the religion of the Federation, and more important, it is positioned above the Article that enshrines the Federal Constitution as the Supreme Law (which is positioned in the Article 4); meaning that the Federal Constitution is subjected to Islam.

YB Kasthuriraani Patto must apologise for:

  1. Failing to understand the Federal Constitution that she pledged to “memelihara, melindungi dan mempertahankan” in her oath of office.
  2. Demoting the position of Islam as the religion of the Federation to the same level as other religions, which is a distortion of the truth not only to the Article 3(1) but also to our Federal Constitution.
  3. Degrade the importance and the status of Islam as the religion of the Federation to Article 11 which is in Part II of the Constitution, placing the basic structure of the Constitution at par with the fundamental liberties.

The question is, could YB Kasthuriraani be able to “memelihara, melindungi dan mempertahankan Perlembagaannya” if she fails to understand the Constitution itself? In the Court of Appeal judgement of the case of Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri & Kerajaan Malaysia, Justice Dato’ Abdul Aziz Rahim said:

I would add however that the position of Islam as the religion of the Federation, to my mind imposes certain obligation on the power that be to promote and defend Islam as well to protect its sanctity. In one article written by Muhammad Imam, entitled Freedom of Religion under Federal Constitution of Malaysia – A Reappraisal [1994] 2 CLJ lvii (June) referred to by the learned counsel for the 8th appellant it was said that: “Article 3 is not a mere declaration. But it imposes positive obligation on the Federation to protect, defend, promote Islam and to give effect by appropriate state action, to the injunction of Islam and able to facilitate and encourage people to hold their life according to the Islamic injunction spiritual and daily life.”

“Saya, ….……..……………………………..……………………………………………, setelah dipilih (atau dilantik) sebagai seorang ahli Dewan Rakyat (atau Dewan Negara) dengan sesungguhnya bersumpah (atau berikrar) bahawa saya akan dengan jujur menunaikan kewajipan-kewajipan saya sebagai yang demikian dengan segala upaya saya, bahawa saya akan menumpahkan taat setia yang sebenar kepada Malaysia, dan akan memelihara, melindungi dan mempertahankan Perlembagaannya.”


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