LET us start with this basic premise: The Federal Constitution is the highest law of the land.
How do we know this? The Constitution itself states so in no uncertain terms in Article 4.
Laws enacted by Parliament and also by the State Legislative Assemblies must be consistent with the Constitution. If these laws are inconsistent with the Constitution, the Constitution tells us that these laws will be void to the extent of the inconsistency.
Compare this with Britain, for example, which does not have a written constitution. In Britain, Parliament is supreme; it can make and unmake any law. Even terms of the much-touted Magna Carta, which sets out the basis of the rule of law, can and has been repealed by an Act of Parliament.
In Malaysia, although our Parliament can enact laws without restrictions, laws which are inconsistent with the Constitution may be declared unconstitutional by the Courts. An unconstitutional law is no longer good law and should be disregarded.
How can a law be inconsistent with the Constitution? If a law that is enacted is contrary to what is stated in the Constitution, then it would be inconsistent and thus unconstitutional. For example, if there is a law that denies or violates the fundamental freedoms guaranteed by the Constitution, then that law is unconstitutional.
The subject matter of sort of law does not matter. The Constitution is the “gold standard” that all legislation must adhere to.
The Constitution provides that the States Legislative Assemblies have jurisdiction to enact laws relating to the religion of Islam. For the Federal Territory, the jurisdiction is vested in Parliament. So we see various state legislative enactments, better known as syariah enactments, enacted by the States. These enactments only have effect in the State in which it is enacted. These syariah enactments also differ from state to state, although a lot of the provisions are similar. These differences are well within the constitutional framework of the Federation of Malaysia.
But what is important to note is that syariah enactments are, at the end of the day, laws made by State Legislative Assemblies. They go through a secular fiat; a Bill must be presented, it will be debated by the elected representatives and must then be passed by the assembly which comprise of Muslims and non Muslim representatives.
Syariah enactments, in this sense, are just like any other law. And just like other laws, they must adhere to the provisions of the Constitution.
Yes, Article 3 of the Constitution provides that Islam is the religion of the Federation, but this does not mean that laws must be consistent with Islamic principles to be valid. This was what was decided by the then Supreme Court in the case of Che Omar Che Soh, a case which is still legally binding and represents the definitive statement on the issue. Laws which might not be consistent with Islamic principles are still valid and binding if they conform to constitutional provisions.
There have been attempts to change this interpretation of the Constitution recently. If these attempts are successful, then it would mean that certain laws could override constitutionally-guaranteed fundamental liberties. So for example, syariah enactments would be excluded from certain provisions of the Constitution. In other words, it would mean that some laws can violate the Constitution yet still be valid.
This cannot be what the framers of the Constitution intended. If this interpretation is accepted, it would change the secular nature of our country. The provisions relating to fundamental liberties in the Constitution do not allow for the liberties to be excluded when it comes to syariah enactments. If these attempts are successful, Muslims would essentially have less liberties than non-Muslims and the can be at the whims and fancies of the State.
This is not about religion. Yes, it may relate to syariah enactments, but even if it is about some other type of law, the same proposition holds true. Regardless of what we feel the law should be, or what kind of country we want this nation to be and what we are ordained, as believers, to aspire to, the fact of the matter is that in this country, it is the Constitution that is supreme, and none other. Syahredzan Johan The STAR Home News Opinion Humble Submission June 1, 2015