The Solution is but One: Abide by the Federal Constitution

The Concerned Lawyers for Justice (CLJ) is deeply perturbed by the statements made by two members of parliament as reported by the Malay Mail Online on June 27th, namely Zairil Khir Johari of DAP and Nur Jazlan Mohamed of Umno.

The former was reported to have questioned the existence of the Federal Department of Islamic Development (Jakim) by claiming that “the authority of Jakim appears to go against the 9th schedule of the Federal Constitution”; while the latter was reported to have alleged that there is no place in Malaysia for state-sanctioned enforcement of Islam.

Not only are such allegations uncalled for, they are also by and large based on erroneous, misconceived and misconstrued understanding of our basic law due to selective — as opposed to holistic and harmonious — reading of the Federal Constitution.

While CLJ acknowledges the pressing need to address and solve the recurring religious conflicts, CLJ would also like to remind that the conflicting interests inherent within the pluralities of the Malaysian societies could only be resolved and harmonised by strictly, fiercely and religiously abide by each and every provisions contained in the Federal Constitution, being the grundnorm dictating as to how the nation should work.

That being said, harmony would not and could never be achieved by playing fast and loose or cherry picking as to which provision to stress, and to which to disregard, as this would only serve to fuel the conflict even further.

The Federal Constitution must be accepted in its totality. Had this been observed by Zairil and Jazlan, they would have noted that the position of Islam as the religion of the federation enshrined under Article 3 of the Federal Constitution is not an empty declaration.

Instead, the significance of Article 3 as held by the Court of Appeal in its landmark decision in The Herald’s case is that it imposes positive obligation on the Federation to protect, defend, promote Islam and to give effect by appropriate state action, to the injunction of Islam and able to facilitate and encourage people to hold their lives according to the Islamic injunction spiritual and daily life.

Such positive obligation has thus been rightly performed by the federal government in the incorporation of Jakim as the leading agency in the management of Islamic affairs at the federal level.

Further, it is to be noted that the history of Jakim started in the year 1968, when the establishment of the National Council for Islamic Affairs (MKI) was agreed upon by the Conference of Rulers. The secretariat of MKI was upgraded in 1974 to a religious division in the Prime Minister’s department, and upon further restructuring in 1997 the division was upgraded to a department that today we know as JAKIM.

In this light, the existence of Jakim must be understood as to give effect to the oath of the Yang di-Pertuan Agong under Article 37(1) of the Federal Constitution, since Article 40 thereof also provides that in the exercise of His functions, the Yang di-Pertuan Agong shall act in accordance with the advice of the cabinet. The oath of the Yang di-Pertuan Agong under Article 37(1) of the Federal Constitution reads as follows:-

“Wallahi, Wabillahi, Watallahi … Further We do solemnly and truly declare that We shall at all time protect the Religion of Islam and uphold the rules of law and order in the Country.”

There are numerous and countless provisions in the Federal Constitution that stresses the exalted position of Islam as the religion of the Federation; there are also strings of clear judicial pronouncements reiterating such positions as to the duty of the government of the day to give effect to such constitutional position of Islam — and all these had been summarised by an activist member of CLJ, Aidil Khalid, in his paper entitled Mengulang-Tegas Kedudukan Islam dalam Perlembagaan Persekutuan dan Sistem Perundangan Negara.

Moves by certain quarters to continue playing to the propaganda that Muslims and religious bodies in Malaysia are moving towards unforgiving extremism, only serve to isolate members of the society further without actually solving the issue. Same goes to frivolous comments that undermine the concerns.

Rather than challenging these clear constitutional provisions, the only way forward for a better Malaysia is for every party and for everyone to embrace, respect and find harmony in these clear pronouncements of the constitution, being the highest law of the federation.

*First appeared in the Malay Mail Online, Jun 29th, 2015.

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