KUALA LUMPUR: Muslims in secular Malaysia, who are also subject to Islamic law, will be discriminated against if a religious council’s proposition to exempt them from enjoying all fundamental rights under the Federal Constitution is allowed, lawyers said.

They said this would leave only non-Muslims to enjoy such universal human rights.

This line of argument also goes against the teachings of Islam which provide that the authorities respect the faith of followers, similar to those accorded in the constitution, they said.

What is worrying, they said, is that denying the majority population such rights would have an effect on investor confidence in Malaysia, and political leaders would lose all moral authority to speak up on critical issues in international forums.

Lawyer Nizam Bashir told The Malaysian Insider that if such a proposition is upheld by the Federal Court, then Muslims may find that “fundamental liberties” need not be observed by the state legislature when enacting Islamic laws.

 “The proposition that fundamental liberties are irrelevant when enacting Islamic law appears to be unsupported by the principal source of Islamic law, the Quran,” he said, referring to the Federal Territories Islamic Religious Council (MAIWP).

Nizam cited some examples such as the right to privacy (Quran 24:27 and 49:12); the right to reputation (Quran 49:11); freedom of conscience (Quran 2:256 and 10:99); and presumption of innocence (Quran 17:15). He said this in response to MAIWP, which opposes non-Muslim lawyers practising syariah law, and last week contended in court that all Islamic enactments are excluded from fundamental liberties in the Federal Constitution.

MAIWP lawyer Mohd Hanif Khatri Abdulla said this was a new point of constitutional importance to be raised against Victoria Jayaseele Martin’s appeal in the Federal Court, in which the lawyer is seeking the right to practise Islamic law in the Syariah Court.

The case will be heard on Aug 13.

Nizam added that one must also not ignore the Universal Islamic Declaration of Human Rights and the Cairo Declaration on Human Rights in Islam of which Malaysia is a signatory.

Civil rights lawyer Syahredzan Johan said the position adopted by MAIWP is an attempt to rewrite the constitution. “The secularity of the constitution is enshrined in Article 4 which provides that the charter is the highest law of the land and any law that is inconsistent with the Federal constitution is null and void.”

Syahredzan said there are no provisos in fundamental liberty clauses which allow these freedoms to be denied to Muslims when it comes to state syariah enactments.

 “If we were to take MAIWP’s argument, then it would mean that Muslims have lesser fundamental liberties compared with non-Muslims.

Lawyer R Kenghadaran said Mohd Hanif was attempting to present a perverse argument, because the legal position was settled that all laws, including syariah-related enactments passed by state assemblies and laws by Parliament (for Federal Territories) could not override any provision in the Constitution. — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on May 19, 2015