Challenges Facing the Malaysian Constitution

The original Constitution of 1957 and 1963 was one of moderation, compassion and compromise but it is being undermined by surreptitious amendments from politicalisation of institutions and disregard for the spirit of the law.

This was expressed by Emeritus Prof Datuk Dr Shad Saleem Faruqi, Senior Professor of Law and Legal Advisor in Universiti Tekonologi MARA, Shah Alam, in his public lecture on ‘The Constitution At A Crossroad’, organised by WOU’s Centre for Dialogue (C4D) under its Chancellor’s Lecture Series at the main campus today.

Prof Faruqi - an eminent expert on constitutional law.

Prof Faruqi - an eminent expert on constitutional law.

He pointed out that “a conservative, obscurantist and aggressive version of Islam from the Middle East, especially Saudi Arabia, is replacing the tolerance and compassion that were the hallmark of Malay society and the Malay archipelago”. 

 “The increasing ‘Arabisation’ of Malay society and the subordination of the Constitution to religious oligarchies are undermining the Constitution and impacting negatively on the rights of Muslims and non-Muslims. There is a very strong oligarchy that is undermining the constitution,” he said.

He wondered if Malaysia was moving towards a Saudi version of an Islamic state. “Are we going to have one-country-two-systems; two systems of laws and two systems of courts for the Muslims and non-Muslims?” He believed time will tell the shape of things to come.

(Seated, front, from left) Dr S Nagarajan and Tan Sri Emeritus Prof Gajaraj Dhanarajan from WOU's Centre for Dialogue.

(Seated, front, from left) Dr S Nagarajan and Tan Sri Emeritus Prof Gajaraj Dhanarajan from WOU's Centre for Dialogue.

Prof Faruqi elaborated that syariah courts existed under state law and have jurisdiction only over Muslims. “Since the late 1980s however, there is civil society pressure to move in the direction of an Islamic state with supremacy of the syariah as the cardinal principle.” Therefore the constitution is “in flux and undergoing very silent, unwritten changes,” he said.

He opined that the Constitution is not a permanent document and therefore it can change. “But this must be done openly. It must be done according to procedures,” he emphasised. He cited the example of the Attorney-General’s office surreptitiously amending Article 12 (4) to translate parent/guardian from ibubapa to ibu atau bapa, allowing one parent to convert a child under 18. “So these surreptitious changes are what trouble me as a student of constitutional law.”

Prof Faruqi offers clear insights on the Federal Constitution.

Prof Faruqi offers clear insights on the Federal Constitution.

He said in 1988, Article 121(1A) was inserted into the Constitution forbidding civil courts from interfering in any matter “within the jurisdiction of the syariah courts”.  He explained that the amendment was badly drafted because it does not say who determines the jurisdiction of the syariah court, leading syariah court judges to interpret their jurisdiction expansively while civil courts interpret their jurisdiction narrowly. “And many areas clearly in federal hands are being determined by the syariah court.” 

Prof Faruqi also observed the reluctance of superior courts to exercise their power to nullify federal and state legislation when there was inconsistency with the constitution. As an example, he cited the ban on Aliran to print in Bahasa Malaysia where the judges converted the case of constitutional issue into one of administrative law by declaring that under the Printing Presses and Publications Act, the Minister has discretion. However, he also pointed out that the courts have done their job in censuring executive abuse of power. For example, the Court of Appeal censured the Home Minister for declaring it illegal for protesters to wear yellow t-shirts, he added.

(Seated, foreground, from right): Tan Sri Dr Koh Tsu Koon, WOU Vice Chancellor Prof Dato' Dr Ho Sinn Chye, and Emeritus Prof Dato' Dr Wong Tat Meng,

(Seated, foreground, from right): Tan Sri Dr Koh Tsu Koon, WOU Vice Chancellor Prof Dato' Dr Ho Sinn Chye, and Emeritus Prof Dato' Dr Wong Tat Meng,

Prof Faruqi was dissatisfied with the wide area of “non-justiciability” in Malaysia unlike most democracies where judges assign it as a political, economic or policy issue and let the Minister to decide rather than intervene. “Our problem is that our non-justiciability extends to emergency proclamations, preventive detention orders, power of pardon, decisions under the Societies Act, transfer of civil servants, decisions under the Printing Presses, and compulsory acquisition of property orders.”

He expressed concern over the alarming development of court decisions not being implemented by some executive authorities, like the custody order for a mother or concerning peaceful assembly. He said the Court of Appeal had declared Section 9 (5) of the Peaceful Assembly Act unconstitutional, and pending appeal by the Attorney-General, the executive authorities were still using this section. “Legally that’s wrong!”

At left is moderator Dr Ooi Kee Beng, Deputy Director of ISEAS-Yusof Ishak Institute, Singapore.

At left is moderator Dr Ooi Kee Beng, Deputy Director of ISEAS-Yusof Ishak Institute, Singapore.

He said freedom of speech is the least protected right, having 14 grounds for Parliament to impose restrictions, e.g. order, security, incitement and defamation.

Prof Faruqi also highlighted that affirmative action policies were written into the constitution in only four areas – appointments in the public services; issuing of government permit and licences; post-secondary education facilities and scholarships; and exhibitions and such facilities. In practice, however, such policies were applied across the board, he remarked.

He also questioned whether constitutional bodies created to enforce accountability such as the Attorney-General Chambers, Auditor General or Police Commission were doing the needed check and balance.

Member of WOU's Board of Governors, Chia Loong Thye (left) with Member of Parliament for Bayan Baru, Sim Tze Tzin (centre) and Koh.

Member of WOU's Board of Governors, Chia Loong Thye (left) with Member of Parliament for Bayan Baru, Sim Tze Tzin (centre) and Koh.

During the Q&A session,  Prof Faruqi summarised that all laws were capable of many interpretations but  that there was thought control of Muslims by the religious authorities, and the ruling elite was either going along or afraid to speak about it.