KUALA LUMPUR: Malaysia’s constitution is secular and not Islamic, said prominent lawyers and a politician yesterday, in response to recent moves to give Muslim law a bigger presence in the country’s legal system.

As such, said Bar Council member Datuk Khutubul Zaman Bukhari, any state enactment passed or fatwa (decree) issued that is contrary to this principle would be ultra vires or in contradiction to the constitution.

Khutubul, who heads the Bar Council’s syariah law committee, said this was further established by a ruling made by former Federal Court Lord President Tun Salleh Abas in a court case.

In that case, a lawyer had tried to get his client off the death penalty by arguing that the punishment was un-Islamic. This was since the Federal Constitution specified that Islam is the official religion.

“Salleh said in his judgement that Malaysia’s constitution is secular and that Malaysia is not an Islamic state. That judgement has since been maintained to this day,” said Khutubul in a forum in Petaling Jaya on Tuesday night.

Khutubul was responding to a question on whether syariah law overruled civil law in the constitution.

The issue is current because of a Nov 7 Court of Appeal ruling where three transgender Muslims had succeeded in overturning an earlier Syariah Court decision in Negeri Sembilan.

The Court of Appeal had ruled that the Syariah Court had violated the three individuals’ right to freedom of expression when the Negeri Sembilan court punished them for wearing women’s clothes.

This prompted some Cabinet ministers to say that they would look into ways to elevate the Syariah Court to make it on par with the civil courts.

Conservative Muslim groups have also been angered by the appellate court’s decision, claiming that the civil courts should not have any say in Syariah Court decisions.

Echoing Khutubul’s opinion, another panel member, former Cabinet minister Datuk Saifuddin Abdullah said the problem stemmed from the fact that some politicians did not realise that the constitution is secular.

“The problem is that some people want the constitution to behave like it is an Islamic state constitution when it is not. You cannot look at the constitution and force it to do something that it was not meant to do,” said Saifuddin, who is chairman of the Global Movement of Moderates (GMM).

Another panel member, former Bar Council chairman Datuk Ambiga Sreenivasan, said that the value of the constitution being secular was that it protects everyone.

In India, she said, minority Christians and Muslims are glad their constitution is secular because it protects them against those who want the country to be pro-Hindu.

At another forum in Penang on Tuesday, a prominent South African Muslim scholar had also said that the Malaysian constitution was also founded on liberal and plural ideals.

“The very idea that Malaysia has accepted, constitutionally or otherwise, the plurality of religious and ethnic communities ... it is already on the way to liberalism.

“If you want to get away from liberalism, you need to tear up the constitution and begin knocking down the very foundation of what the society is about,” said Professor Ebrahim E I Moosa of Notre Dame University in the United States.

Moosa was speaking at a forum titled “Developing a Philosophy of Pluralism”, organised by the Penang Institute. — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on December 11, 2014.