The Civil Court Must Decide

Brave New World (The Star)
5 April 2007

"The Constitution is the supreme law of the land and when those in power, in particular the judiciary, ignore these constitutional provisions, they are flying in the face of the foundations of our government and our legal system."

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What kind of country do you want to live in? It appears to me that today in Malaysia, there are two possible answers to this question. There are those who want to live in a secular constitutional democracy and there are those who want to live in a theocracy.

Differing opinions is nothing new and does not in itself pose any problems. What does pose a problem however is when one tries to achieve one’s objectives through unlawful and insidious means.

But before we get into that, let’s have some definitions. A democracy is a system of government where we the people elect our representatives. They in turn govern the country, making laws and so forth.

Ultimately, power lies with the people. We put them in positions of power and if we don’t like our leaders and the laws they make, we can simply vote them out.

A democracy is also a system where certain freedoms are guaranteed, such as free speech and the freedom of association – all necessary components for a democracy to work properly in the first place.

A theocracy, on the other hand, is not governed by elected officials but by a religious head of state or a religious group. Unlike in a democracy, ordinary people have no say in the laws that are made.

This is because since the laws used in a theocracy are divine, only those with the necessary credentials can make any sort of decision regarding them.

An example of a theocracy is Iran. Sure, they have elections; President Mahmoud Ahmadinejad in his trendy windbreaker is evidence of this. However, his authority is subservient to the Ayatollahs who are the final decision-making authority in the country.

The country we live in now is a secular constitutional democracy. The supreme law is a secular document – the Federal Constitution. The supreme law of the country is not the Torah, not the Bible, not the Quran, not the Vedas.

Islam is given special mention in the Constitution as the religion of the Federation. What this means is that Islam is identified as the official faith of the nation.

This is reflected in government ceremonies and the like. If this country was meant to be an Islamic theocracy, then the Constitution should have said so. It does not.

Personally, I think it is great that we live in a democracy. I think it vital for human dignity for us to have a say in the way our lives are to be governed, and this includes the laws that rule us.

By giving away that power to legislate, be it to an individual or to a group of individuals, in essence what we are doing is giving up our right to be treated equally as free men and women.

There are those who would prefer to be governed by the rules of a holy book or perhaps more accurately, by the interpretation of that holy book by a select few. Well, good for you, I say. If that is what you want, then fine.

But this means the laws of this country have to be changed to accommodate that. This means the
entire Constitution will have to be rewritten. To do this, all one needs is to ensure that two-thirds of the lower and upper houses of Parliament are in agreement as well as all the nine sultans. Once this is achieved, then hey presto, we can chuck out that horrible secular Constitution and put in a wonderfully religious one.

Until this happens, however, and it must be respected. It guarantees certain things like the freedom to choose what faith one wants to follow; it lays down the Constitution is still the supreme law of the land certain rules like which court has jurisdiction over which types of persons. When those in power, in particular the judiciary, ignore these constitutional provisions, they are flying in the face of the foundations of our government and our legal system.

Maybe there are those in the judiciary who fear to make certain decisions lest they appear unreligious and are branded nasty things, like apostate. Well, if that is your concern, then you should not be holding office, should you? After all, your oath of office is to uphold the Constitution, not any particular religious dogma.

If religious dogma is your thing, then be a religious judge in a religious court. Leave the High Courts in the hands of those who understand what their job is.

What has been happening over the past few years in this country is an insidious move towards a theocratic state. When the religious freedoms of individuals are not respected (no matter how repulsive one might feel it is), when normal governmental decisions dealing with matters such as health have to be referred to religious authorities, when the doors of the civil court, the only court open to non-Muslims, are slammed in their faces in total disregard of the Constitution, we are losing sight of the secular principles upon which this country is meant to be run on.

This issue of the courts is an important one, because the courts must protect the Constitution, and in this respect, the civil courts are the highest courts in the land because it is only they who have the authority to do so.

The Syariah Court deserves respect, as it is a constitutionally created body. But it too must abide by the principles of the Constitution. One of these is that it is meant only for Muslims. It does not matter if the Syariah Court is the fairest, most just court in the universe, it does not matter if its judgments are perfect; it is only meant for Muslims and a non-Muslim should not be forced to go to a forum where they do not have a right to be there. Or, for that matter, a desire to be there – since the Syariah Court rules according to the tenets of a religion, and to wish to be subject to that, one has to have the prerequisite faith.

So, back to my original question, what kind of country do you want to live in? I know which one I want, and I trust so do you.

You have a right to want to change the country to a theocracy according to your aspirations, and I have a right to want to keep it pluralistic and secular, according to mine. My only contention is, if you want to change what we have, do it properly. Do it lawfully.