The Syariah and the Malaysian Constitution

Baharuddeen Abu Bakar, Retired Advocate and Solicitor | .

“(C)onstitutional expert Emeritus Prof Datuk Dr Shad Saleem Faruqi” quotes Bar Council constitutional law committee co-chair Firdaus Husni  that Syariah enactments made in Malaysia have to comply with the Constitution because the Constitution is the supreme law; Article 4: article published in the Sunday Star on 16th August 2015.

Firdaus Husni quotes Article 160 to support his view. By way of definition, the Article lists some of the terms by which civil laws are known, and Firdaus Husni says, the Syariah can be taken as falling within these terms.  This view is mendacious and intellectually dishonest. Article 160 leaves out any mention of the Syariah or any of its variant expressions. Why?

It is a well-known rule of civil law interpretation that where the draftsman has with great particularity mentioned items of a certain category but leaves out one of that category that which is left out is not meant to be included by the interpretation of the court: expression unis est exclusio alterius ( inclusion of one is the exclusion of the other):when a list of specific items is not followed by general words it is to be taken as exhaustive e.g. ’weekends and public holidays’ excludes weekdays.(See Rules and Principles of Statutory Interpretation; Oxford Dictionary of Law 7th Edition).

In the Merdeka University case, the Federal Court applied the same principle of interpretation.  To paraphrase, it held that the fact that the law provided for the teaching of Mandarin did not mean it provided for teaching in Mandarin unless there were specific words to that effect. The court could not be expected to bring about a major shift in education policy by the inclusion of words the Reid Commission had omitted in a manner that amounts to a re-drafting of the Constitution by judges.

Conclusion 1:  Article 4 should read: The Constitution is (only) the supreme civil law. And Islamic law and the civil law are supreme within their respective spheres of operation.

To assist his argument, Prof. Faruqi seems to suggest downgrading God-made law to man-made law because the Syariah provisions were formulated by the ulama who , after all, are human beings. However the Syariah provisions were deducted, admittedly by human beings of piety, learning, insightfulness and even perspicacity, the ulama. Prof Faruqi , even goes to the extent of asking, “the Syariah provisions were drafted by the wisdom of the ulama but is it the wisdom of God?” Unless Prof Faruqi can prove to us that he is privy to the wisdom of God, which he has not derived from the Qur’an and Hadith, we are content with the learning and deductions of the ulama.

Conclusion2: We prefer the Allah-inspired wisdom gleaned it from the Qur’an, the Hadith and the interpretations of the learned of our ulama.

The Syariah may be challenged as to its validity only before the Syariah court and only on the grounds of inconsistency with the Qur’an and Hadith.(This does not include inconsistencies between  schools of Islamic law) The Islamic law making and fatwa bodies are really the final determinants of the matter as far as Malaysia is concerned, and not the civil courts.

Conclusion 3: The Syariah provisions cannot be challenged as to their constitutionality because the Syariah provisions are based not on the Constitution but on the sacred texts of Islam.

And the cause of his frustration is none other than the anti- cross-dressing legislation and prosecution. Muslim men are not allowed to dress as women. The prosecution resulted in a constitutional challenge in the civil court.  Some scientific evidence appears to have  been adduced that some who are admittedly male biologically may have become so transformed by their own will, by external influences or  by fashionably gay culture or because it goes well with certain trades or circumstances or  any other causes to be effeminate that they feel they are as good as women.

Conclusion 4: Islamic Law against cross-dressing is not invalid because Islam does disallow it and the Constitution envisages (as distinct from the Constitution allowing it) law being made ‘against the precepts of Islam’.

Where there is a purported constitutional challenge to the Syariah the matter should be dealt with by the Syariah court which alone has jurisdiction; and to make the determination as to whether the Syariah recognises such a category of males. If successful, then the Syariah court should acquit such individuals but the Syariah legislation remains valid for others not so circumstanced; and the civil court may then ipso jure, declare that the legislative assembly cannot make such laws though for that category of persons only.

Conclusion 5: The question of law and evidence is one for the Syariah court: does Islam recognise such a category of persons as male or not?

On the question of the gap in aurat-concerns  between female gymnasts and male bodybuilders, the learned Prof should as a Muslim hope for that to be removed by judicious, patient extension of the law rather than by removal of the entire law to achieve nudity and trumpet the absence of any inconsistency between female and males!

A challenge as to the constitutionality of Syahriah legislation will involve challenges to the validity of Islamic teachings. These challenges are instigated by the Church and its allies the Star and the Bar Council. There have been a series of these: the Inter-faith Council sponsored by the Bar Council; the campaign run by the Star forseveral months to drop mention of religion in the IC; the Lina Joy issue; the Allah issue; and now the cross-dressing issue. Some anti-Islam elements are clearly piggy-backing the Opposition parties.

The saddest part of all this is the failure of Muslims and non-Muslims particularly Christians to make common cause based on the common moral teachings of Islam and Christianity  and by the application of existing law  fight the more pressing issues of the day: corruption; racism; decline in educational standards; failures of the judiciary; the mounting crime rate etc. While we fight among ourselves, the ruling party’s nonsense goes on apace to our own detriment. - ES  

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