Jointly written by Hj. Mohamed Haniff Khatri Abdulla[1], Hj. Abdul Rahim Sinwan[2] and Azril Mohd Amin[3]
This paper intends to discuss the position of Islam within the Federal Constitution with regards to matrimonial disputes involving non-Muslim couples, married under the civil law, wherein one of the spouses converts to Islam. It will be proposed throughout this paper that the approach in resolving the nature of these disputes shall be by applying the necessary Syariah principles through the Syariah Court system, as opposed to the Civil law system. It will also be proposed that this approach is within the literal as well as spiritual intent of our Federal Constitution.
The first reference made would be Article 3 (1)[4] of the Federal Constitution, wherein Islam is stated as the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation. It is submitted that the phrase “Islam is the religion of the Federation” is not a symbolic statement. The Federal Constitution is not written for the purpose of a mere declaration.
The Constitution is written in order to be given life. It is an organic document which needs to be interpreted, applied and set to administer and serve the evolving needs of our society. It is a declaration and intention of the constitution of our country, that Islam as the religion of the Federation must be applied whenever permissible and applicable to allow Muslims to be governed by their Islamic laws. It should be noted, that this provision found in Article 3(1), is in no way against the rights of the non-Muslims of our country to practice their own religion pursuant to Article 11(1).
The real meaning and application of Article 3(1) has been clarified on various occasions by our courts. First and foremost, the High Court decision in Meor Atiqulrahman v Fatimah Sihi and others[5], reported in 2000, wherein the then Justice Mohd Noor Abdullah stated;
“Islam ialah ugama bagi persekutuan tapi ugama-ugama lain boleh diamalkan dalam aman dan damai. Islam adalah ugama utama di antara ugama-ugama lain yang dianuti di negara seperti Kristian, Buddha, Hindu. Islam bukan setaraf dengan ugama lain. bukan duduk berganding bahu dengan agama lain atau berdiri sama sama tegak. Ia duduk di atas, berjalan dahulu, terletak di tempat medan, dan suaranya lantang kedengaran. Islam ibarat pokok jati. Tinggi, teguh, dan terang. Jika bukan sedemikian, Islam bukanlah ugama bagi persekutuan, tetapi adalah salah satu di antara beberapa ugama yang dianuti di wilayah ini, dan setiap orang sama-sama bebas mengamalkan mana-mana ugama yang dianuti. Tiada lebih di antara satu sama lain.”
This decision of the High Court undeniably was overruled by the Court of Appeal and thereafter by the Federal Court. However, that above-quoted portion of the High Court judgment was never reversed or expunged. In fact the decision of the Court of Appeal and the Federal Court was based on some other issues independent to the position of Islam vis-à-vis Article 3(1).
Then Abdul Hamid, the Federal Court Judge decided the issue in that case[6], i.e. whether or not a Muslim boy can wear the serban to school, on his finding as to whether wearing a serban is a prescribed sunnah under the Islamic principles. His Lordship on his own volition and conclusion decided that wearing a serban is not a prescribed sunnah. Hence he decided that it was not a religious duty or obligation under any Islamic principles for a Muslim boy to put on a serban to school. In no way did the Federal Court (and even the Court of Appeal) decide that the High Court judgement on the position of Islam vis-à-vis article 3(1) was incorrect. In fact, the very reason that the Federal Court had to go into its own finding as to whether wearing a serban is a sunnah or not itself, is opined, is due to the recognition of the Federal Court as to the position of Islam under article 3(1).
Secondly, even in the case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan[7], the then Chief Justice, Yang Amat Arif Tun Ahmad Fairus said:
“Islam itu bukan sahaja suatu himpunan dogma-dogma dan ritual-ritual tetapi ianya juga suatu cara hidup yang lengkap merangkumi semua bidang aktiviti manusia, persendirian dan awam, perundangan, politik, ekonomi, sosial, budaya, moral atau kehakiman etc”
In fact, his lordship found strength on the position of Islam by referring to a portion of the controversial decision of Che Omar bin Che Soh vs PP[8], in which case even Tun Salleh Abbas in a portion of that judgment did recognize that Islam is a complete way of life. However, Tun Salleh Abas, unfortunately then went on to make certain glaring errors in his judgment which shall be addressed later in this discussion.
http://thereflectiveheart.wordpress.com/2009/06/12/moving-forward-to-strengthen-the-position-of-islam-under-the-federal-constitution/
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