Constitutional amendments insufficient to allow Syiah discrimination, says Bar Council

The Star 
by TAN YI LIANG

PETALING JAYA: Any attempt to amend the Federal Constitution to clarify that Muslims in Malaysia are those who adhere to the Sunnah Wal Jamaah or Sunni Islam will not create a situation by which Syiah followers can be discriminated against, said Malaysian Bar Council president Christopher Leong.

However Leong cautioned that this would be so if both Syiah and Sunni Islam were recognised as distinct religions in the eyes of the law.

"Bearing in mind that Syiah and Sunni emanate from the same source and share the main articles of Islamic belief, the Syiah branch of Islam would also be a religion which would enjoy the protection given under the second limb of Article 3(1) of the Federal Constitution," said Leong. 

He pointed out the second limb of Article 3(1) says other religions may be practiced in peace and harmony.

"If it's accepted that branches of a religion are in themselves recognised as a religion, then substituting the word Islam with Sunnah Wal Jamaah would have two effects - Islam would no longer be the religon of the Federation, and Sunnah Wal Jamaah, a branch of Islam would be the religion of the federation," he said. 

Leong added that if Sunnah Wal Jamaah was not a religion per se but a branch of Islam, replacing the word "Islam" with "Sunnah Wal Jamaah" in Article 3(1), "we would instead have a branch of Islam, which would arguably be anomalous to be described as the religion of the Federation."

This view was not shared by constitutional law expert Syahredzan Johan who said any such change would offend or disturb the basic structure of the Federal Constitution, as a specific branch of Islam is not defined in Article 3(1) of the Constitution. 

"You are creating a situation where you are excluding other Muslims who are not Sunni from being seen as Muslims in the eyes of the Constitution.

When you make such an amendment, you are wiping out the identity of Malay Muslims who are not Sunni as being seen as Malays in the eyes of the law," he said.

Syahredzan pointed out that under Article 160 of the Federal Constitution, a Malay is defined as a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom.

"By redefining Islam, you are taking away the rights of those who do not practice Sunni Islam. They would be unable to be married as Muslims in Malaysia, the Syariah Court would not have jurisdiction over them, they cannot go through the official channels to perform the Haj," said Syahredzan.

The issue of amending the Federal Constitution arose ten days ago at the Umno General Assembly 2013 when Penang delegate Datuk Shabudin Yahaya proposed the amendment to deny deviants the right to call themselves Muslims.

Meanwhile, Malaysian Centre for Constitutionalism and Human Rights coordinator Edmund Bon, said that such an amendment could lead to intra-religious discrimination as only one branch of Islam would be recognised.

"With this those who do not practice Islam as per that branch can face quite serious punishments by the Syariah court for being deviants," he said.