The recent Court of Appeal decision on the transgender case received heavy criticism from certain quarters (hereby referred to as the “gainsayers”) who view the decision as a step backward in terms of the development of Islamic law. To the contrary, the decision should be applauded as it reflects the development of Constitutional law in Malaysia. It upholds the fundamental liberties entrenched in our Constitution and its secular nature. I write this article in reply to the gainsayers and also to show the position of Islamic law in Malaysia.
For ease of understanding, I will divide this article into two parts. We will look at: first, the framework for the exercise of legislative powers; and secondly, the status of Islam in Malaysia.
The Framework for the Exercise of State Legislative Powers
1.    It is admitted that the State Legislature can legislate on matters pertaining to Islam by virtue of Article 74(2) and List II, item 1, of the Ninth Schedule of the Constitution (hereby referred to as the “State List”). The present case and others before it come under the ambit of the phrase “against precepts of that religion (Islam)”.
2.    At this juncture, it is pertinent to point out that the popular argument adopted by the gainsayers is that the State’s right to legislate is sacrosanct once it falls under the State List, in particular under the umbrella of “against precepts of that religion (Islam)”. This is entirely misconceived.
3.    The following are the restrictions placed on the State’s legislative powers, EVEN IF the matter falls under the umbrella of “against precepts of that religion (Islam)”:
3.1 If the matter falls under the Federal List, the State cannot legislate on it. This is clearly reflected from the words, “except in regard to matters included in the Federal List” which appears right after “against precepts of that religion (Islam)”. In essence, this means that if a matter falls under the precept of Islam and also the Federal list, the Federal List prevails. Article 75 lends credence to framework that the Federal List takes precedence over the State List in instances of an overlap.
3.2 The State cannot legislate contrary to the Federal Constitution. In other words, in exercising its legislative powers, it must be in line with the provisions of the Federal Constitution. This position is garnered from Article 74(3), read together with Article 4(1) of the Federal Constitution. In our case, the State cannot legislate to the effect of prohibiting any fundamental rights guaranteed under Part II of the Federal Constitution, UNLESS it falls within any permissible exceptions in the said Article(s).
3.3 It is pertinent to note, that the State cannot, in ANY circumstances, legislate to the effect of prohibiting Freedom of Expression under Article 10 of the Federal Constitution. As provided for under Article 10(2), only Parliament can do so. This position was reinforced by the Supreme Court in Dewan Undangan Negeri & Anor v Nordin Salleh & Anor [1992] 1 CLJ 72 (Rep).
4     To put it succinctly, even if a matter is prohibited in Islam, expressly or otherwise, it CANNOT be made an offence under Malaysian Islamic law if it runs foul with any constitutional provision. Using the transgender case as an example, even if cross dressing is prohibited in Islam, it cannot be made an offence under Malaysian Islamic law as such prohibition is a violation of the fundamental rights guaranteed under Articles 5(1), 8(1), 8(2), 9(2) and 10(1)(a) and does not fall within any exceptions under the said Article(s). To put the nail on the coffin, as cross-dressing falls under Article 10(1)(a), only Parliament can prohibit such right.
Status of Islam in Malaysia
5     In discussing the issue, one can’t run away from the topic of the status of Islam in Malaysia. The Gainsayers frequently aver that Malaysia is an Islamic State. I would like to take this opportunity to point out that Malaysia is definitely NOT an Islamic State. This has been said many times but a reminder is needed.
6     Article 3 of the Federal Constitution merely states that Islam is the official religion of the Federation. This does not equate to Malaysia being an Islamic State. The following excerpts from historical documents clearly show this
6.1 Federation of Malaya Constitutional Commission, 1956-1957 Report (The Reid Commission) – Paragraph 169, “We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision were inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims. In the memorandum submitted by the Alliance it was stated the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non Muslim nationals professing and practising their own religions and shall not imply that the State is not a secular State.”
6.2 Federation of Malaya Constitutional Proposals 1957 (White Paper) – Paragraph 57, “There has been included in the proposed Federal Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practice his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.”
6.3 Report of the Commission of Enquiry, North Borneo and Sarawak, 1962 (Cobbold Commission) – Paragraph 148(e)(ii), “Taking these points fully into consideration, we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardizes freedom of religion in the Federation, which in effect would be secular.”
7     The above excerpts were judicially crystalized by the Supreme Court in Che Omar v Public Prosecutor [1988] 2 MLJ 55. The Supreme Court expressly noted that the Federal Constitution is secular in nature.
8     The Gainsayers reply to the above have been that the situation has changed since the introduction of Article 121(1A) to the Federal Constitution. It is posited that the said amendment was made to avoid conflicts between the civil and syariah court’s decision, as put by the late Professor Ahmad Ibrahim. It has nothing to do with the position of Islam in Malaysia.
9     Furthermore, the late Professor Ahmad Ibrahim himself, who was instrumental in the development of Islamic Law in Malaysia, accepted that Malaysia is not an Islamic State. In his writing entitled “The Position of Islam in the Constitution of Malaysia”, he stated: “Although the Alliance Party had insisted that Islam should be declared in the Constitution as the official religion of the Federation, it did not ask that the constitution should also declare, as did the Pakistan Constitution, that the State shall be an Islamic State”.
Conclusion
10  I welcome any criticism or rebuttal to my abovementioned arguments. I believe this article is needed in light of the rising extremism in our country.


11  To conclude, the Federal Constitution was written to protect the rights of all citizens in this country. The protection works both ways. The constitution protects us, and we protect the constitution in its intended nature, moderation.

About the Author:

 

“Surendra is the former President of the Asian Law Students’ Association (ALSA) International Board. He was an avid mooter back in law school and has represented Malaysia in international mooting competitions. He is currently undergoing his pupillage to become an Advocate and Solicitor in Malaysia”

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