Thursday November 1, 2012
Debates rage on many fronts
Reflecting On The Law
By Shad Saleem Faruqi
There are some law issues being argued of late like secular state, parliamentary committee and death penalty.
IN the last fortnight, a number of engaging public law issues captured the public imagination.
> Secular state: De facto law minister Datuk Seri Nazri Aziz crossed swords with DAP’s Lim Kit Siang over the latter’s claim that Malaysia is a secular state.
The law minister correctly pointed out that nowhere in the Constitution is there any mention of the word “secular”.
Further, as Islam is recognised in the Constitution as the religion of the federation, it would be improper to regard the country as a secular state.
In support of this view, one can point out that the word “Islam” is mentioned at least 24 times in the Constitution, the words Mufti, Kadi Besar and Kadi at least once each. In Schedule 9, List II, paragraph 1, state legislatures are permitted to apply Islamic law to Muslims in a variety of civil areas.
The state legislatures are also permitted to create and punish offences by Muslims against the precepts of Islam except in relation to matters within federal jurisdiction.
Syariah courts may be established. Under Article 121(1A), syariah courts are independent of the civil courts.
On the other side, Lim correctly pointed out that Malayan constitutional documents and pronouncements by early leaders indicate that at its birth the federation was meant to be a secular state.
To back this view, one can point to the Supreme Court decision in Che Omar Che Soh’s case that although Islam is the religion of the federation, it is not the basic law of the land.
Article 3 on Islam imposes no limits on the power of parliament to legislate contrary to the syariah. Islamic law is not the general law of the land either at the federal or state levels.
It applies only to Muslims and that too in limited and specified areas. It is noteworthy that non-Muslims are not subject to syariah or to the jurisdiction of the syariah courts.
Ever since Tun Dr Mahathir Mohamad’s declaration on Sept 29, 2001 that Malaysia is an Islamic country, this debate ignites periodically and no firm conclusion is ever possible because of the problem of semantics – the assignment of different meanings to the words “secular” and “theocratic” by participants in the discourse.
My personal view is that if by a theocratic state is meant that the law of God is the supreme law of the land and that the temporal ruler is subject to the final direction of the theological head, then clearly Malaysia is not a theocratic state due to the presence of a supreme Constitution and the overriding power of secular authorities over the religious establishment.
At the same time if by a secular state is meant that law and religion are separated from each other; that there is no legally prescribed official religion; that religion is not interwoven into the affairs of the state; that no state aid is given to any religious creed; and that religion is left entirely to private establishments, then Malaysia is certainly not a secular state.
Then how should we be described? It is submitted that the Malaysian legal system is neither fully secular nor fully theocratic. It is hybrid. It permits legal pluralism.
It avoids the extremes of American style secularism or Saudi or Taliban type of religious control over all aspects of life. It walks the middle path. It promotes piety but does not insist on ideological purity.
Muslims are governed by divinely ordained laws in some fields but in others their life is regulated by Malay adat and by secular provisions enacted by elected legislatures. Non-Muslims are entirely regulated by secular laws.
In sum, the secular versus theocracy debate is full of semantics and polemics and will take us nowhere.
> Parliamentary committee: The Government is contemplating setting up a permanent select committee in Parliament to scrutinise Suhakam reports.
If this move comes about it will not only catapult human rights to the forefront of parliamentary discussion, it will also do a great deal to bolster the image of parliament as the grand inquest of the nation.
A system of well integrated and well serviced investigatory committees as in the United States and the Philippines holds the only key to enabling parliament to become an effective countervailing force to the ever increasing powers of the executive.
An increase in the number of permanent select committees from the present five to one for each government department as in Britain, one joint committee on Human Rights, a Dewan Rakyat committee on Public Complaints to examine the reports of the Public Complaints Bureau and a joint committee on subsidiary legislation will do much to improve the institutional efficacy of parliament and to enable backbenchers to play a more meaningful role.
To assist parliamentarians in this oversight function, non-partisan support structures ought to be established.
MPs should be assigned research assistants. The Houses should have their own legal counsel. In the manner of INTAN and ILKAP, an Institute of Parliamentary Affairs should be established to train MPs and to hone their abilities to research and analyse issues.
> Death penalty: Amnesty International has praised Malaysia for the proposal to abolish the death penalty for drug trafficking. The proposal is in its early stage and it is a matter of speculation which of the three alternatives will ultimately be accepted.
First, maintain the death penalty for serious crimes but remove its mandatory nature. Restore judicial discretion to tailor the punishment to suit the factual matrix of each case.
Second, reduce the number of offences for which the death penalty may be imposed as at present for waging war against the Yang di-Pertuan Agong, offences against a ruler or governor, abetting mutiny in the armed forces, murder, abetment of suicide, attempt by a life convict to murder if hurt is caused, kidnapping or abduction in order to murder, hostage-taking, gang robbery with murder, drug trafficking and unlawful possession of firearms.
Third, abolish the death penalty altogether as in 87 countries plus 27 others that have not executed anyone for the last 10 years.
Which of the alternatives will be chosen will ultimately be a matter of high policy dictated as much by human rights considerations as by public opinion. It is submitted that on fundamental issues of right and wrong, popular opinion, while given due weight, should not be allowed to dictate ultimate decisions.
As Jesse Jackson once said: “Leaders of substance do not follow opinion polls. They mould opinion, not with guns or dollars or position but with the power of their souls.”
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM.