The system of governance under the Federal Constitution
What is the Federal Constitution?
It is the document that evidences the agreement between, initially, the inhabitants of the Malay Peninsula and, subsequently, also of Sabah and Sarawak, which facilitated the process by which those inhabitants could achieve independence from the British colonial masters and thereafter collectively proceed to self-rule over these territories.
The Federal Constitution laid out the frame-work by which all peoples of different ethnicities and faiths might live in these territories in peace and harmony, enjoying equality and freedoms that are God-given.
It is this document which by consensus of the then leaders of the various segments of society that laid the foundation of the sovereign state of Malaysia.
Given the potential vastness of this subject, so as to avoid getting into areas not necessarily relevant to the issue at hand, I will state my propositions immediately and then explain and substantiate the same.
My first proposition is that the Federal Constitution laid the foundation for self-rule of, firstly, the Federation of Malaya and later, together with Sabah and Sarawak to make up the Federation of Malaysia, as a secular state.
My second proposition is that this secular, sovereign state of Malaysia was intended to be governed by the people for the people. Malaysia is a parliamentary democracy headed by a titular constitutional monarch where the real power of governance vests with the citizens. The Federal Constitution laid down the frame-work for just governance by fellow citizens, and made provision so that the citizens not involved in government might remain a free people by the entrenchment of fundamental rights that were, in times of peace, to remain absolutely inviolable and which, in any event, were always to be defended by citizens who made up the judicial arm of government.
My third proposition is that even as we speak of a ‘secular, sovereign state’ created by the Federal Constitution, we must not be so awed by this high-sounding term so that we lose sight of the fact that this term describes a body of human beings of diverse faiths, cultures and interests who have collectively agreed to rest their hopes of a fulfilled life on this artificial entity call a ‘secular, sovereign state’. The secular, sovereign state of the Federation of Malaysia, then, is not secular as an end in itself, but the means by which all Malaysians have the guarantee of an opportunity to realize their own aspirations.
Malaysia – a secular state
The Foundation
“The Malaysian Constitution was not the product of an overnight thought but the brainchild of Constitutional and administrative experts from UK, Australia, India and West Pakistan, known commonly as the Reid Commission… Prior to the finding of the commission there were negotiations, discussions and consensus between the British Government, the Malay Rulers and the Alliance party representing various racial and religious groups. On religion the commission submitted: 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 profession and practising their own religions and shall not imply the State is not a secular State.' There is nothing in the draft Constitution to affect the continuance of the present position in the States with regard to recognition of Islam or to prevent the recognition of Islam in the federation by legislation or otherwise in any respect which does not prejudice the civil rights of individual non-Muslims. The majority of us think that it is best to leave the matter on this basis, looking to the fact that council for the rulers said to us - "it is Their Highnesses' considered view that it would not be desirable to insert some declaration such as has been suggested that the Muslim Faith or Islamic Faith be the established religion of the federation. Their Highnesses are not in favour of such a declaration being inserted ...It was in the above basis that our Constitution was drafted and promulgated”. – Justice Abdul Hamid Omar LP in Teoh Eng Huat.
“…it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only. In our view, it is in this sense that the framers of the Constitution understood the meaning of the word 'Islam' in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.” – Justice Salleh Abas, LP in the case of Che Omar Che Soh.
“Whether we like it or not, we have to accept that Malaysia is not the same as a Malay State prior to the coming of the British.” – Justice Abdul Hamid Mohamed, FCJ in the case of Meor Atiqulrahman.
Against the backdrop of these judicial pronouncements, I will contend certain basic premises.
First, the Federal Constitution, by Article 4(1), declares itself to be the supreme law of the land. Every law student understands this to mean that any laws, be they customary, statutory, civil, criminal or religious, which conflicts with the Constitution cannot stand.
Second, whilst the Constitution by Article 3(1) declares Islam to be the religion of the federation, this in no way was intended to detract from the secular nature of the federation. Tun Salleh Abas presided in the sitting of the Supreme Court in Che Omar Che Soh in 1988 that confirmed this. No subsequent sitting of the Supreme or Federal Court has held to the contrary. I have previously had occasion to summarise the findings and pronouncement by the Supreme Court in Che Omar Che Soh in a letter dated 15th July, 2005 to Malaysiakini entitled ‘Secular state: Karpal’s stand not personal interpretation’.
Third, whilst the Federal Constitution since its inception has been subjected to numerous amendments, it has not undergone such a transformation as to have altered the original secular state created.
Secular state explained and illustrated
The Cambridge Advanced Learner’s Dictionary offers the following meanings:
secular : not having any connection with religion
secularism : the belief that religion should not be involved with the ordinary social and
political activities of a country
secularise : when something is secularised, religious influence, power or control is removed from it
If you googled the word ‘sekularisme’, you would find much writings which present a meaning plainly at odds with the dictionary meaning reproduced above. Invariably, these writings portray secularism as an ‘anti-God’ ideology. I managed to retrieve an article by one Abu Bakar bin Yang posted on the Institut Kefahaman Islam Malaysia (IKIM) website entitled ‘Sains dan Sekularisme’ which offered the following interpretation:
sekularisme: konsep penyingkiran nilai ketuhanan
In this paper I use the word ‘secular’ in the sense that religion, or any one or more of the established faiths, should not reign supreme, wielding influence, power or control over the governance of the country. Any one or more religions ought not to be the basis for the formulation of national policy, national law-making or judicial interpretation of those laws.
By ‘secular, sovereign federation’, then, I mean a system of government where governmental policies and laws passed for application to the general public would not be ‘theocracy’ or ‘any-one-or-more-religion-based’. Let us call these policies and laws ‘secular-based policies’ and ‘secular-based laws’ respectively. Henceforth, every reference in this paper to ‘secular’ or ‘secular, sovereign federation’ is intended to mean a system of government where governmental policies formulated for general public application, laws promulgated for application to the general public and the judicial process of interpreting and applying those laws are not theocracy-based.
For instance, murder is an offence in our statute books not because it is a sin by the tenets of Islam and / or Christianity or all known religions but because it is essential to the very survival of the human race and hence for the common good of all mankind that homicide without just cause be prohibited.
Similarly, the judicial arm of government, in interpreting and giving effect to laws, must not overlook that as those laws must be ‘secular-based’, so too their interpretation and application. So, a judge, in passing sentence in respect of an individual convicted of a crime, must be guided by principles of sentencing adhered to by the judiciary as a whole, taking account of the general public view then prevailing in respect of such crime, and not his own personal convictions premised on his religious beliefs. As Tun Salleh Abas so aptly put it in Che Omar Che Soh:
“…we (meaning the judges) have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.”
Also, the executive, in formulating national policy on matters such as health and education, and local authorities in drawing up policies such as the placement of houses of worship within their jurisdiction, must be guided by considerations of well-being of the general public, and not the advancement of the precepts or cardinal beliefs of any one or more faiths.
Government of the People by the People
“Government by the people” flows from that most precious right reserved to citizens of the federation by Article 119 of the Constitution: the right to vote.
It is by the exercise of this right that periodically, Malaysians mandate a number of our fellow citizens to take their place in the lower chamber of Parliament and there to serve our best interests, principally in the law-making process but additionally to act as watchdogs for the citizens in respect of the formulation of policy by the executive.
These are the Members of Parliament, more commonly referred to as MPs.
It is from amongst the MPs that His Majesty the King then appoints one who is likely to command the confidence of the majority of the other MPs as the Prime Minister, or PM.
The office of PM is a critical position in the scheme of the Constitution.
Much of His Majesty’s functions under the Constitution are exercised upon the advice of the PM. These include the appointment of the members of the upper chamber of Parliament, the remaining members of the cabinet from either chamber of Parliament and the judges of the superior courts.
The theory of the scheme of the Constitution, then, is that national policies are decided by an executive led by our elected representative PM, federal laws are approved by two bodies, one elected by the citizens and the other appointed on the advise of our elected representative PM, and the administration of justice is overseen by the superior courts which are manned by fellow citizens appointed, once again, on the advise of our elected representative PM.
It is in this sense that the Constitutional scheme sets up a ‘government of the people by the people’. The legitimacy of federal laws passed to give effect to national policy formulated flows from the fact that we, the voters, are the authors of the same through our elected representatives.
This Constitutional scheme is at its best, though, when national policies or federal laws that offend the Constitution are struck down by the defenders of the citizens’ rights: the judges of the superior courts.
This is democracy at work.
Finally, it must be mentioned here that by Article 159, the framers of the Constitution vested to all generations of Malaysians, through their elected and appointed representatives in Parliament, the power to amend the Constitution. Except for a limited category of amendments narrated in that Article, all other amendments must receive the approval of not less than 2/3 of the total number of members in both chambers of Parliament.
The Secular Federation – the guarantee for all Malaysians
You will see below that even as the Federal Constitution guarantees us, the citizens, fundamental rights and liberties, very few of these are absolute, and, in my view, necessarily so.
Most, if not all, of the limitations to those rights and liberties guaranteed are constitutionally grounded on considerations of public health, morality or order or the security of the Federation.
Limitations imposed or permitted by the Constitution are ‘secular’ or ‘common good of all’ based and not ‘theocracy’ or ‘any-one-or-more-religion’ based.
What this means for us, you and I, is that we are free to fully exercise those rights and liberties, in pursuit of the way of life we aspire to, subject only to lawful restrictions thereon. If they are limited by the Constitution itself, it would generally turn on the considerations mentioned above. Similarly, if Parliament is constitutionally permitted and moves to legislate to impose limitations on any of our constitutionally guaranteed rights, those laws must also be similarly motivated.
We are guaranteed that our way of life will not be proscribed or interfered with for no other reason than that it does not coincide with the chosen way of life of others. As long as your way of life does not impinge directly on the ‘common good of all’, you may carry on.
Couple this with a Constitution which is the supreme law of the land and the guarantee is complete.
In this sense, our secular, sovereign state is, in my view, so much in harmony with Islam of the Holy Qur’an.
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