HADI AND THE MYTH OF A SECULAR MALAYSIAN CONSTITUTION

 

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