HADI AND THE MYTH OF A
SECULAR MALAYSIAN CONSTITUTION
Recently,
Malay Mail reported that PAS president Tan Sri Abdul Hadi Awang called for the
abolition of laws he described as colonial legacies which obstruct the fuller
implementation of Syariah law in Malaysia.
Among the
issues he raised were Act 355, the Civil Law Act 1956 and the division of
legislative powers under the Ninth Schedule of the Federal Constitution. More
fundamentally, he argued that laws preventing Islam from taking its rightful
position above "man-made laws" should be removed.
With all
due respect to Hadi, perhaps we need to unpack the real issue behind this
debate.
THE QURAN AND SYARIAH LAW ARE NOT THE SAME THING
The first
issue is the distinction between divine revelation and human law. For Muslims,
the Quran is divine revelation. But Islamic law, as it is interpreted, codified
and applied, necessarily involves human reasoning and judgement.
Muslim
jurists have differed across time, place and schools of thought precisely
because human interpretation is involved. We should therefore not equate the
Quran with every law made in the name of Syariah. This is why the contrast
between Syariah law and "man-made law", as though one is entirely
divine and the other entirely human, is problematic.
We can
see the distinction during the Prophet Muhammad's leadership of Medina. The
Quran was not the constitution of Medina. The Prophet established the Piagam
Madinah - the Medina Charter - to govern a real community made up of different
groups. It dealt with relationships, responsibilities, security and the
practical realities of organising a community.
The Quran
provided the moral and spiritual guidance, while the Charter dealt with
governing people in the circumstances of that particular society. Our Federal
Constitution performs a similar constitutional function. It provides the
framework through which Malaysia is governed - defining institutions, powers,
rights, responsibilities and relationships within our Federation.
Of
course, the Federal Constitution is man-made. But Islamic law, once
interpreted, codified and translated into an enforceable legal system, also
necessarily involves human judgement.
The more
useful question, therefore, is not whether a law is "man-made". The
question is whether our laws uphold values such as justice, fairness,
compassion, dignity and the common good. These are values Islam itself seeks to
uphold.
HADI HAS EVERY RIGHT TO SEEK CHANGE
Having
said that, Hadi has every right to propose changes to our laws and
constitutional arrangements. The Federal Constitution is not written in stone.
It has been amended many times and can continue to evolve as Malaysian society
evolves.
If Hadi
believes that the present constitutional arrangement is inadequate and that
Syariah should be given greater jurisdiction, he has every right to make that
case. But he must persuade Malaysians and secure the necessary political and
constitutional support.
There is
an irony here that should not be overlooked. The very constitutional system
that Hadi considers inadequate is also the system that provides him with the
legitimate pathway to achieve the changes he seeks. The Constitution protects
his right to advocate for change. At the same time, it establishes the
procedures and safeguards through which those changes may legitimately be made.
So the
Constitution is not merely an obstacle standing between Hadi and his objective.
It is also what gives him the constitutional means to pursue it. That needs to
be recognised.
MALAYSIA IS NEITHER PURELY SECULAR NOR THEOCRATIC
This
brings us to a much bigger question. What exactly is Malaysia's constitutional
system?
Unfortunately,
both sides of our political divide oftentimes fail to tell the whole story. One
side insists that Malaysia is a secular country and uses that position to
resist a greater role for Islam in public affairs. The other side also portrays
our present constitutional arrangement as essentially secular, but uses
precisely that argument to say Malaysia is not Islamic enough and must move
towards a more Islamic constitutional order.
In that
sense, both sides are actually working from the same premise. They may want to
pull Malaysia in opposite directions, but both reduce our much richer
constitutional arrangement into a contest between "secular" and
"Islamic".
So this
is not just about Hadi. Right-thinking Malaysians without a political agenda
should question both sides. We should question those who insist Malaysia must
be understood as a secular country just as seriously as we question those who
insist that our present constitutional arrangement is insufficiently Islamic.
Both can use these labels for political purposes, and both risk dividing
Malaysia into two artificial camps.
The
reality is far more interesting. Our Federal Constitution is neither purely
secular nor theocratic. I would describe it as a hybrid constitution, carefully
developed around the historical realities of our society.
It did
not begin with a blank sheet of paper at Merdeka totally sired from a colonial
legacy. It recognised the history and traditions of Tanah Melayu, the position
of the Malay Rulers, Islam, the existing communities and institutions that are
thousands of years old, while at the same time establishing a modern
constitutional democracy for a new independent nation.
Then,
with the formation of Malaysia in 1963, the constitutional arrangement had to
embrace another layer of history and reality - particularly those of Sabah and
Sarawak, with their own peoples, traditions, religions, customs and
constitutional safeguards.
There is
an important idea here - kesinambungan, or continuity. Our Constitution
did not attempt to erase what came before and start everything again. It
carried our history forward while creating institutions capable of governing a
changing society.
It will
never be perfect. No constitution is. But there is something quite brilliant
about the way ours managed to capture that continuity - the old and the new,
tradition and modernity, Islam and other faiths, different legal traditions,
the Peninsula, Sabah and Sarawak - and bring them within one constitutional
framework. That is an important part of what makes the Malaysian constitutional
arrangement distinctive.
We are
clearly not a theocratic state. The Federal Constitution is supreme, and we
have civil laws, democratic institutions and constitutional rights. But neither
is our constitutional system purely secular. Islam has a specific
constitutional position, and Islamic law and Syariah institutions operate
within areas provided for under the Constitution.
And lest
we forget, Malaysia's legal landscape is even richer than simply civil law and
Syariah law. Sabah and Sarawak have native laws and customs, including Native
Courts recognised within our constitutional framework. The customs and
customary rights of the Orang Asli in Peninsular Malaysia also receive legal
recognition, although through a different legal framework.
Malaysia
has therefore never been built around only one legal tradition. Our
constitutional arrangement accommodates civil law, Islamic law and indigenous
customary laws within one overarching constitutional framework.
That is
why "hybrid" is perhaps a more useful way of understanding Malaysia.
It accommodates the requirements of a modern constitutional state while
recognising the religious needs of Muslims, indigenous traditions and the
realities of a multi-religious and multicultural society.
THE CONSTITUTION CAN EVOLVE
None of
this means that the present balance must remain exactly the same forever. A
constitution must serve its society. As Malaysian society changes, our
constitutional arrangements may also change. But those changes must reflect
where Malaysians collectively want the country to go and must take place
through the constitutional processes already provided.
And when
we say "Malaysians", those of us in the Peninsula must never be
myopic. Malaysia is not the Peninsula alone. Any discussion about fundamentally
changing our constitutional arrangement must take into account our fellow
Malaysians in Sabah and Sarawak and the constitutional foundations upon which
Malaysia was formed.
Hadi has
every right to propose his vision for Malaysia. Those who advocate a more
secular vision have the same right. But right-thinking Malaysians without a
political agenda should be prepared to question both sides when either presents
only part of our constitutional story.
Perhaps
we should stop trying to squeeze Malaysia into labels borrowed from elsewhere -
secular on one side, theocratic on the other. We have created something
distinctly Malaysian. It is not perfect. It can evolve. It can be improved.
But
before dismantling the balance we have inherited and developed over nearly
seven decades, we should first understand what we actually have - a
constitutional arrangement that has found a way to accommodate different legal
traditions, religions, histories and communities within one Federation.
Perhaps
the question is not whether Malaysia should become more secular or more
theocratic. The better question is whether our constitutional system continues
to deliver justice, fairness, dignity, good governance and peaceful coexistence
for all Malaysians.
That
should be our measure.
Peace,
Anas
Zubedy
