The White Elephant in Our Constitution

The constitution is not supposed to be something difficult to understand. It is written (in large parts) in plain language, it is relatively well structured – 13 parts with 13 schedules, and most importantly, it is not the thickest of documents I’ve had to read. But it is often made difficult by politicians, lawyers, judges, and people like me – teachers.

We made it difficult because we tell you first; you must go through years of legal education to understand fundamental legal methods and logic. Then you must not read the constitution at face value – there are methods of interpretation, aids to construction, intrinsic principles of constitution, volumes of case laws, journals, and the historical backdrop of the formation of the constitution to digest before you can say anything accurate about the constitution.

While all of the above is true, we must never forget that our constitution is not some grandiose tome meant for legal elites only, it is a document for every Malaysian. In fact, we lawyers can learn a thing or two if we only remember not to over complicate things when reading the constitution.

The simplicity we must never forget is that our constitution says what it says. We see ambiguities and conflicts because presume what the constitution should say. Take for example, article 3(1) of the Federal Constitution says:

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

Those who want Malaysia to be an Islamic state argue that this article is an unequivocal statement that Malaysia is an Islamic state. This is not correct. While what amounts to an Islamic state is a debate in itself, an Islamic state’s constitution should recognise the supremacy of Islamic laws; and any laws that contradict basic Islamic tenets should be null. Just take a look at articles 1 & 2 of the Iranian constitution and the stark differences with our constitution cannot be ignored.

On top of that, article 3(4) of our constitution specifically provides that Islam being the religion of the Federation mentioned in article 3(1) cannot be used to trump any other articles in the constitution. (As anyone with logic should know, a specific provision trumps a general provision.) This affirms the inferior status of article 3 to article 4, which provides for the supremacy of our constitution over any other laws in the Federation.

On the flip side, to say that Malaysia is a secular state is also rather farfetched. Again, what amounts to a secular state is also subject to debate, but central to secularism is the idea that religion should be separated from politics and the day to day running of the state.

Article 3(3) of our constitution identified the Yang di-Pertuan Agong and the ruler of each of the Malay states as the head representing the Islamic religion. While the Ninth Schedule of the Federal Constitution omitted Islam as part of the Federal legislative jurisdiction; it specifically provided that Islamic laws are within the purview of states’ legislative function. The subsequent creation of a Syariah Court by article 121(1A) further blurs the separation of religion from the governance of a state.

So, what does our constitution actually say in regards to Islam and the Federation? Not a lot really. It says that we have something to do with Islam, but it definitely does not say that Islam is the ‘official’ religion of the Federation; neither does it says or even suggests that we are a secular federation.

Too often we read the constitution looking for what we want to find, but it is not always there, and it does not always say what we want to hear. We cannot expect our constitution to be complete or be too specific about everything, it says what it says, and that’s it. It leaves large amount of empty spaces between the specifics, for us to breathe maybe, for us to grow, perhaps?

 

This article is written, and also meant to be read, over a cup of coffee. To treat everything said above as absolutely true would do injustice to the reality that you really do need a law degree to even begin to understand the constitution, and most with a law degree still don’t. For a more accurate account of article 3 of the Federal Constitution, see the tome of an article* written by Tommy Thomas here.

(*caveat: for lawyers only)


Posts by Lua Bo Feng

Lua Bo Feng MR – the master of mind-buggery, students call him. The only skill he has is the subtle art of taking a thought and ripping it to shreds with logic, candour, and precision. He likes to think that he is born to be a LoyarBurokker because LoyarBurok (LB) is a subset of Lua Bo Feng (LBF), and since he started teaching, Lua Bo Feng has devolved into his primal avatar – the orang utan, a close relative of the chimp(s) at LoyarBurok. By the way, MR stands for mind rapist.

Posted on 10 August 2011. You can follow any responses to this entry through the RSS 2.0.

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3 Responses to The White Elephant in Our Constitution

  1. johny goldlum pisch

    why people in this website seem t be anti muslim?