Skip to main content

The Misunderstood Notion of Supremacy of The Constitution

By 20 Mei 2015Tiada komen4 minit bacaan


By Lukman Shariff

Recently I had a debate with many from the left. It centred on the supremacy of our constitution and they were criticizing as usual the religious authorities for disrespecting the constitution.

After much debate, I now realise that they had totally misunderstood by what supremacy of our constitution means. They had this misconceived notion that our constitution is secular and thus Islamic law cannot prevail. They also have this misconception that supremacy of our constitution means putting liberal and human rights above all else.

How can we be so very ignorant. Many of them are misled by the incessant misleading spin of the left politicians and the media. No wonder we are so polarized. They think they are still correct and expect the rest to follow them.

Allow me to explain why they are so totally wrong.

In essence supremacy of our constitution means our constitution is supreme above any other laws. It means we must respect the content of our constitution. If the content of our constitution says Islamic law or any other religious law for that matter as the prevalent law, any challenge to the status of Islamic or religious law is in fact repudiating the concept of the supremacy of the constitution. Supremacy of the constitution means abiding with the content of our constitution.

Now our constitution is not a constitution based on idealism despite what our politicians say. It’s based on a give and take; a compromise of our forefathers. We are not like in India laying down idealism as a basis of the constitution. It was a practical outcome of various legacies that we had.

Thus to argue supremacy of our constitution based on secularism is not only misleading and misguided, but erroneous and non sensical. There is not a single word of secularism being mentioned in our constitution and it is this misconceived notion that is pitting us against each other.

First let us get it straight what secularism means as understood in the normal language. It means a separation of state and religion. Under this concept the constitution must put the state distinct and above religion. A constitution which has a preference for any religion cannot thus be secular. So in the mind of those in the left, our constitution separates the state and Islam and the reference to and role of Islam is merely ceremonial.

But this is where it is totally based on a false premise. As a result of our legacies, our constitution actually cast in stone the recognition of Islamic laws. It establishes the jurisdiction to enact Islamic laws. It then establishes and recognizes various Islamic institutions and even the courts which have the power to decide and impose penal penalties. The “custodian” of the religion ie the Sultans still retains as the head of religion. Following from this power, the religious authorities from the muftis to baitul mal to zakat authorities are constitutionally recognized. This is how pervasive the constitution recognizes Islam. In order words the constitution expressly recognizes Islam beyond the misconceived notion of a ceremonial role. It actually permits the legislation on matters based on morality or religion to be determined and enforced by religious authorities on more than half of the population. Can this be secularism by any stretch of definition? Did our constitution separate the state and religion? No right minded person can even justify as such.

And if we were to analyse further, following from the above, the muslims here are subject to penal laws which are not applicable to non Muslims. Does this not make an act an offence to a Muslim but not to non Muslims? Hey! Isn’t this against the liberal and human rights concept of equality before the law? Shouldn’t the law not discriminate on the ground of race and belief? It should if you believe in the liberal concept of equality. And this is where the liberals and left have got it all wrong. Our constitution was never meant to be ideal. The muslims here (save the liberals) have no complains being subjected to additional laws. It’s part of the compromise our constitution recognizes. The liberal concept of equality simply doesn’t and cannot apply. Our constitution must and should prevail to uphold what we have agreed. This is what supremacy of our constitution means.

This ignorant argument on secularism is driving us apart and is totally unnecessary. I note it is a rallying call for certain political party and this partisanship that has polarized us like never before. We need to get out of this partisan mindset. And on this issue its not that difficult to do. We just need to read the constitution and apply a bit of common sense.

PS: I note the case laws which states our constitution is secular as opposed to an Islamic state. I’m not arguing we are an Islamic state as in the Iranian and other Middle East model which we are not. The courts were arguing on a different argument and not whether our constitution is secular in the ordinary meaning of how it’s understood.

— Lukman Shariff is a lawyer

Tinggalkan komen anda