Hadi is misguided: The Constitution is supreme, not open for negotiation

G25 Malaysia refers to Pas president Hadi Awang’s statement on 9 September calling for the abolition of what he describes as “colonial laws” obstructing the implementation of Islam.

He named the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), the Civil Law Act 1956 and the division of powers in the Ninth Schedule of the Federal Constitution. He also called for Islam to be placed above man-made law.

These laws are not colonial and should not be removed.

Act 355 was enacted by Malaysia’s own Parliament in 1965, eight years after the peninsula’s independence. Its limits of three years’ imprisonment, a RM5,000 fine and six strokes were set by an elected Parliament in 1984.

The Ninth Schedule is part of the Constitution’s own design, agreed by the rulers, the Alliance and the people of this country.

The Civil Law Act was carried into independence by our nation’s founding fathers, who chose a working legal system. It applies the common law only where Malaysian written law is silent, and only so far as local circumstances permit. Parliament can displace it by ordinary legislation at any time, as it has done before.

To call these laws colonial is an attempt to play politics with the foundation of this country.

The Pas president’s proposal also defeats itself. Item 1 of the State List says that Sharia courts have no jurisdiction over offences except as given by federal law. Act 355 is that conferment. Abolish it and the Sharia courts lose their criminal jurisdiction altogether.

Pas is actually seeking a replacement law with no limits on punishment. This is the private member’s bill that Parliament never passed.

What removal would mean

Repeal of the Civil Law Act would remove the basis on which our courts apply the common law. It would also remove the rules of equity that underpin tort, trusts, commercial dealings and every area where Parliament has not legislated in full. The legal uncertainty and cost to investor confidence would be unprecedented.

Malaysia’s Islamic finance industry, among the largest in the world, is built on federal statutes and enforced in the civil courts. Undermining that framework would harm the very Muslim institutions the Pas president says he wants to strengthen.

Rewriting the Ninth Schedule would require a constitutional amendment. It would also reopen the compact with Sabah and Sarawak. Their entry into Malaysia in 1963 was agreed on the basis that there would be no state religion in those states.

It would create two classes of people. Muslims would face an expanded criminal jurisdiction and harsher punishment than their fellow citizens for the same conduct.

Those who would suffer first are Malay Muslims themselves, and among them the poor, women and the young, who have always borne the weight of moral policing.

Supremacy of the Constitution

Muslims believe that God’s law is perfect. What human authorities apply is fiqh, the interpretation of learned men. This interpretation differs between schools of thought and, in Malaysia, between 14 enactments across 13 states and the federal territories.

To place one interpretation above the Federal Constitution is to place a small group of clerics above the rulers, above Parliament and above the courts. That is a theocracy, and the founders of this country, Malay and Muslim as they were, rejected it.

The Federal Constitution is a covenant that people of every faith have honoured for nearly 70 years. Honouring covenants is itself an Islamic obligation.

The Constitution already gives Islam its place as the official religion of the federation and makes the rulers heads of the religion in their states. It also protects Muslims.

The Federal Court has recognised, in Semenyih Jaya (2017), Indira Gandhi (2018) and most recently Dhinesh Tanaphll (2022), that the Federal Constitution has a basic structure. No Parliament can remove it, even by amendment under Article 159.

The separation of powers, the judicial power of the civil courts and their independence are part of it. The Court has located the doctrine in Article 4(1) itself, the clause that makes the Constitution supreme.

A proposal to place any body of religious law above the Constitution or to remove the clauses that stand in its way is a proposal to dismantle that structure. It lies beyond the reach of any two-thirds majority.

An attempt to rewrite history

The Pas president says a draft describing Malaya as a secular state was dropped after the rulers objected.

Paragraph 169 of the Reid Commission Report records something different. The rulers’ counsel advised against inserting any declaration of Islam as the established religion of the Federation.

The words “shall not imply that the State is not a secular State” were the Alliance’s own, written in its memorandum to the commission.

The rulers’ reservation was about the religious declaration itself. There was no secular clause for them to strike out.

Nor do the later personal views of individual jurists, however eminent, amend the Constitution. Tun Salleh Abas’s judgment in Che Omar bin Che Soh remains the binding statement of the law.

Political opportunism, not principle

These recent statements come as Pas positions itself to lead the next government. They follow, by just days, its president’s remark that non-Muslim ministers should be confined to implementing policy, while only Muslims should lead policymaking.

The current system is sound and must be preserved. The Federal Constitution gives the states power over Islamic personal and family law, religious institutions, zakat, waqf and offences against the precepts of Islam. These are administered by Sharia courts, whose jurisdiction over Muslims is protected by Article 121(1A).

Federal law governs everything else, applying equally to all. This is a genuine dual system, and it has served Malaysia well.

Its problems arise at the boundaries: in cases of unilateral conversion, custody, apostasy and moral policing. They also arise from the tendency of religious authorities to assert powers beyond their jurisdiction.

G25 Malaysia has said since 2014 that the answer is to clarify those boundaries and keep both systems within the Constitution. A special committee, set up in 2024, under the National Council for Islamic Religious Affairs and chaired by the Selangor sultan, exists precisely to study the competence of state legislatures to enact Islamic laws. That is the proper channel.

The answer is never to subordinate one system to the other. The Federal Constitution is what makes the dual system possible. Remove its supremacy and the dual system goes with it, leaving only the rule of whoever holds power that day.

G25 Malaysia therefore calls on the prime minister, the attorney general and every political party that aspires to govern, including Pas, to affirm plainly that the Federal Constitution is supreme and will remain so.

Everyone in Malaysia should heed the third principle of the Rukun Negara (National Principles), which is “Keluhuran Perlembagaan” (supremacy of the Constitution). It was not written as a suggestion but as a principle that everyone in Malaysia must uphold. – G25

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