By Boo Su-lyn
Kuala Lumpur : It would be unconstitutional to specify “Islam” in the Federal Constitution as the Sunni denomination as it violates the basic structure of the law of the land, several legal experts told Putrajaya.
Criticising the Home Ministry’s proposal, civil liberties lawyer Syahredzan Johan said if such a move were to be passed by Parliament, it would wipe out the entire Malay-Muslim legal identity of non-Sunni Muslims.
“It offends the ‘basic structure’ of the constitution,” Syahredzan told The Malay Mail Online.
“The framers of the constitution clearly did not intend Islam to be defined or only a particular brand of Islam to be recognised in the Federation,” he added.
The Home Ministry had proposed yesterday to reword the definition of “Islam” in Article 3 of the Federal Constitution to insert the words “Sunna wal Jamaah”, in a bid to curb the spread of Shia ideology.
Article 3 presently plainly states that Islam is the religion of the Federation.
Explaining, Home Minister Datuk Seri Ahmad Zahid Hamidi had said that the move, which will be presented to the government for discussion soon, is to prevent other ideologies, like the Shia, from spreading in Malaysia.
But Syahredzan insisted that the proposal would mean that non-Sunni Malay Muslims would not be considered Malays in the eyes of the law, as Article 160 of the Federal Constitution defines a Malay as one professing Islam.
The lawyer also pointed out that non-Sunni Muslims would not be able to be heard by the syariah court, perform the haj, or even marry, divorce, and receive inheritance, among other family matters.
“It takes away the rights of these non-Sunni Muslims,” said Syahredzan.
Shia, also spelled “Syiah” locally, is the second largest denomination in Islam after Sunni. The latter is widely practised in Malaysia and is the only branch of Islam recognised by Putrajaya, as other schools, including Shia, are considered deviant.
There are no official statistics on Shiites in Malaysia, but US daily the New York Times quoted Shiite leaders in 2011 as saying that there are an estimated 40,000 Shiite followers in the country, many of whom practise their faith underground.
Nizam Bashir, syariah and constitutional lawyer, said that even if the Federal Constitution can be amended with two-thirds parliamentary majority, the position of Islam stated in Article 3 would arguably fall outside the powers of Parliament, as per the “basic structure” legal doctrine.
“There are certain features of the constitution that are beyond the reach of Parliament,” Nizam told The Malay Mail Online, citing fundamental liberties as an example.
“What is the basic structure, which is beyond the reach of Parliament, is subject to the interpretation of the courts,” he added.
Nizam also said redefining Islam in the Federal Constitution violates Article 11, which protects the right to profess and practise religious beliefs.
“I don’t think Shiite Muslims are harming people in Malaysia,” said the syariah lawyer.
Firdaus Husni, chair of the Bar Council’s constitutional law committee, similarly called the Home Ministry’s proposal unconstitutional.
She pointed out that the Supreme Court ruled in the Che Omar Che Soh 1988 landmark case that Islam, in the context of Article 3 of the Federal Constitution, only relates to state rituals and ceremonies.
“This was derived by looking at the intention of the framers of the constitution back then. The proposal, therefore, would be inconsistent with this,” Firdaus told The Malay Mail Online via email.
“Article 11(4) provides for state law (and federal law for federal territories) to ‘control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam’. So the State List under the Federal Constitution already provides for this,” she added.
Syahredzan similarly noted that there are already Syariah laws criminalising non-Sunni Islamic practices.
“I would argue that if the intention is to ‘outlaw’ non-Sunni Islam, amending the constitution to define Islam as Sunni Islam will not do that,” he said.
The National Fatwa Council had issued an edict on May 5, 1996, banning Shia beliefs on the grounds that they would split Muslims in the Malay/Muslim-majority country.
Kedah Mentri Besar Datuk Mukhriz Mahathir pushed last July for an anti-Shia fatwa to be gazetted in the northern state to curb the spread of Shia ideology in Malaysia.
The Home Ministry’s secretary-general Datuk Seri Abdul Rahim Mohamad Radzi reportedly said last August that 10 states have gazetted anti-Shia laws.
According to him, Pahang, Kelantan, Sabah and Sarawak are also in the process of gazetting the anti-Shia legislation.