The angry judge

Zaid Ibrahim

Former Chief Justice Tun Abdul Hamid Mohamad has been an angry man for many months now.

First, he was angry that Islam was “under threat” in Penang because the state government (allegedly) did not provide financial allocations for Islamic activities. Then he said that the position of Islam was being threatened by other religions and that the Catholic Church was out to convert Muslims. Then he said that non-Muslims wanted the same rights as Muslims in Malaysia.

Now, he is a great defender of “Islamic law”, which he believes is being ignored and trampled upon by the Civil Court—and this is especially so in light of the recent Court of Appeal decision that transgendered people have rights under the Constitution and deserve protection.

Abdul Hamid said that the Court’s decision would “open the door to same-sex marriage” and that it was just a matter of time before adultery and sodomy would also be permitted.

I am surprised that a former Chief Justice of the Federal Court should be capable of such anger and outright alarmism. Judges ought to remain level-headed even in retirement and should not be influenced by extraneous factors, prejudices or their own wild imaginations.

As a former Chief Justice who was sworn to uphold the Federal Constitution, Abdul Hamid should have been the one lauding the courage of the current judges of the Court of Appeal for interpreting the law of the land according to the Constitution.

Unfortunately, he seems to be goading judges to ignore the Constitution altogether, and he is dramatising the effects of the recent decision by providing ridiculous examples of what “might” happen.

We should hasten to assure him that none of the Civil Court judges will approve same-sex marriage applications because it simply isn’t permitted under federal law. Likewise, sodomy is an offence and adultery is an offence for Muslims.

In the case of Muslim offences generally, I am sure that Civil Court judges will not disturb Shariah verdicts if there are sufficient witnesses to prove the offence in accordance with Islamic law.

As a lawyer, Abdul Hamid surely knows that all state laws must conform to the Federal Constitution—the areas of the law on which the state can legislate are described in the Ninth Schedule of the Constitution.

Of course, some “Islamist” lawyers do argue that the power of state laws are wider than what has been decided so far by the Civil Court, but it’s still up to the Civil Court judges to determine if these so-called “Islamic laws’ comply with the Constitution.

Just because a law is labelled “Islamic” does not mean it automatically passes the test of legal validity. We sometimes agree with a judge’s decision, and other times we do not. In either case, there is no reason to poke fun at the judiciary when its decisions do not find favour with us.

Let’s say that, one day, Kedah passes an “Islamic law” criminalising a Muslim woman’s failure to wear a tudung. Now, there are many Malay women who do not wear the tudung. Suppose some of them challenge the validity of the law in the civil High Court. We should be clear that they are not challenging Islam. What they are challenging is whether the law enacted in Kedah is valid under the Federal Constitution.

In this case, the Civil Court will apply the same test to see if not wearing a tudung is a matter that comes within the power of the state. The court will ask questions such as: “is wearing a tudung listed in the State List of the Federal Constitution?” If it is not listed there, does it come under the wider meaning of an Islamic precept? Or does it come under “Muslim personal law”?

If the answer is “no” in each case, then the law cannot be valid under the Federal Constitution—it’s as simple as that. So why is everyone getting excited about Islam being under siege every time a particular enactment is held to violate the Constitution?

Perhaps Abdul Hamid et al. should ask if the Constitution is “Islamic” in the first place. If it is not, then he, the Islamist lawyers, ABIM, ISMA, Perkasa and so forth should all gather next week at the Putra World Trade Centre and demand that UMNO delegates call for the abolition of the Federal Constitution (and hence this country) altogether.

That will make it easier for our judges to decide cases. But if the Constitution is already “Islamic”, then these commentators must confine their observations strictly to legal issues and should not attempt to coerce the judiciary.

There should be no intimidation of judges, whether by a former Chief Justice or politicians and other lobbyists, to force them to act or decide in a manner that is outside the law of the country—lest we forget, it is an offence in common law to pervert the course of justice.

Judges, if they are Muslim, must not be made to feel fearful or “less Islamic” if they come to decisions in accordance with their understanding of the law. Even judges who are not Muslim cannot be said to be interfering with or challenging Islam when they are merely applying the law.

Is this too difficult to understand and too much to ask from our self-appointed “defenders of the faith”?