Monday, July 21, 2008


Caveat: While I have eschewed democracy as a tool to achieve social justice and other goals and am generally blase about its illusionary attractions, i am writing this with being a Moslem as my locus standi. I hope that the farmer's view is also given due cognisance in the scheme of things even though the salt of the earth are often trod upon by the intellectual heels and rational shoes of nattily dressed legal eagles who are nifty with words and condescending in thought and attitude to say the least.

"Days after the political tsunami on March 8, Umno president Abdullah Ahmad Badawi, former Selangor menteri besar Dr Mohd Khir Toyo and PAS leaders huddled together in a building in Kuala Lumpur for a secret meeting........

So goes the blurb in Malaysiakini about a clandestine tete-a-tete between UMNO and PAS leaders to prevent the crown jewel of Malaysian politics from being besmirched by the hands of the DAP. (for the malay version go here: While the move would be lauded by those from the somewhat blinkered perspective of racial supremacy, the bigger question of establishing a Muslim pseudo-theocracy recedes into the background obfuscated by the mists of short term glory. In my opinion, a more valid and beneficial approach would be for PAS to leave the PR and chart the hitherto uncharted third way as a fulcrum to balance the contending political worldviews of both the BN and PR, worldviews which i am afraid are still firmly rooted in the secular paradigm. PAS should acknowledge the fact that they essentially triumphed due to a perceptible shift in the Malay vote bank(Nay.. no mountain of dubious evidence would shift my rock solid contention that PAS ,essentially, did not make much headway with the non-muslim electorate.) Pray, what are the meat and bones of the third way, siree?

Essentially, my dear buffalo, the third way posits the judicious leveraging of political power to gain concessions from whichever party that affects towards the reigns of power. Simply put, it would mean PAS using its minor gains in Perak and Selangor to reap maximum mileage for Islamisicing the country- in short a drive towards an Islamic pseudo-theocracy.How can this be effected? The best way forward seems to be via the BN. I put forth my proposal in the following paragraphs for discussion and debate.

PAS has got a firm grip in Kelantan and to a lesser extent in Kedah. In the latter, a loose alliance of BN + PAS would mean the equation of power would transform itself to 30(BN + PAS) to 6 (PKR + DAP), exceeding the minimum 24 needed for 2/3 control. Excluding Sabah, Sarawak and Penang, the same scenario can be replicated in all the remaining states excepting in Perak : 35 (BN + PAS) & 24 (PKR + DAP) and Selangor where major realignments are unavoidable: 28 (BN + PAS) & 28 (PKR + DAP). And therein lies the beauty of political skullduggery: for PAS to leverage this new found strength to demand for the enactment and imposition of Syariah in all these states on MOSLEMS (for starters) in exchange for political/legislative support in Perak and Selangor. With such enactments in place, the next move would be to ratify these arrangements at the federal level. Preposterous as it may seem, there seems to be two ways out of this conundrum:

a) A constitutional amendment through which PAS throws it support behind the 140 seats that BN has and hey presto.... you wake up to a sharia shangrila.Provided that, and here is the catch, the non-Muslim parties within the BN are amenable to such an arrangement.
If such acquiscence is not forthcoming, then the onus falls on the BN to offer on the platter, goodies to their Non-Muslim counterparts (MCA, MIC, UPKO, PBS etc) such as a renegotiated NEP minus the onerous provisions that have so alienated the non-malays, provisions for the protection of chinese, tamil and indigenous education until tertiary level, a more open and equitable sharing of wealth or anything to that effect that will still the winds behind the DAP/PKR sails and in the process deracialise the prevailing political paradigm.

b) For UMNO + PAS & PBB ( total seats in Parliament : 116, sufficient for a wafer thin majority of 12) to go it alone and implement the sharia en bloc based on the constitutional interpretation as offered by Ibrahim and Joned (1987) who aver that Malaysia is an Islamic state for all intents and purposes be it from the historical perspective {a fact noted too by Harding (1996)} and by Aziz (2006) from the constitutional viewpoint. It follows that this is sufficient ground for circumventing the constitutional 2/3 requirement in order to impose the Syariah on Muslims and Non-muslims alike. However, such a move is fraught with difficulty as Article 3(4) and Article 4 will be brought into the equation and we will have a right ol constitutional mess, wouldnt we? even though a ruling by the Federal Court on the legal niceties can clarify the issue.
Another more plausible alternative would be to weasel in thru the loophole.

2. The Loophole
Of course the non muslim retort to (1) above (sans Karpal's inevitable amuck) would be an unequivocal nein based on their interpretations of several provisions of the constitution (articles 8 and 11 come to mind). Such an interpretation can be evinced from the arguments put forth by Faruqi (2005) who marshals case law, convention, traditional adat and the constitution to support his view (much of which is debatable as i will show in another post):
Adat: One must also note the very significant influence of Malay adat (custom) on Malay-Muslim personal laws. In some states like Negeri Sembilan, adat (custom) overrides agama (religion) in some areas of family law.
Article 4(1): Under Article 4(1) the Constitution and not the syariah is the supreme law of the federation. Any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.
Article 162(6): Under Article 162(6) and (7) any pre-Merdeka law which is
inconsistent with the Constitution, may be amended, adapted or repealed by the
courts to make it fall in line with the Constitution.

Definition of ‘law’: Article 160(2) of the Constitution, which defines "law", does
not mention the syariah as part of the definition of law.
Article 3(4): Though Islam is adopted as the religion of the federation, it is clearlystated in Article 3(4) that nothing in this Article derogates from any other provisionof the Constitution. This means that no right or prohibition is extinguished as a result of Article 3.

Sufian, on the other hand, argues that the Malaysia's secular nature though not implied in the constitution is nevertheless clear from the White Paper tabled in relation to the constitution. However, despite his conviction that Malaysia is a secular state, Faruqi(2005) qualifies his assertion with this statement:

However there is plenty in the Constitution to suggest that Malaysia is, at least
partly, an Islamic state. (Faruqi : page 6)

and uses traditions, practices and jurisdictional issues to support the argument, a viewpoint also asserted by Bari (2007). It follows that Faruqi's view augmented by the provisions of article 121 and the interpretations provided by Ibrahim and Joned by themselves provide a loophole for the imposition of the Syariah on the Malay-Muslim polity at least (if a challenge is mounted, then a recourse to the judiciary would be sufficient to repulse it easily). A loophole that an UMNO +PAS + PBB loose alliance can explore and exploit. And exploit PAS must for the current situation does afford a golden oppurtunity to do so. In this regard, PAS can compel such a scenario if it plays its cards astutely and the test of UMNO's sincerity in extending the olive branch would only be apparent if they agree to do PAS' bidding in both the legislature as mentioned above and in enforcement:

It must be remembered, however, that section 20(1) and (2) clarify that in the
performance of his duties, a police officer is subject to the orders and directions of
his superiors in the Force and not the order of the State executive. (Faruqi : pg 15)

If PAS does pull it off, it would be coup d' etat of sorts over their erstwhile nemesis, UMNO and indirectly over the DAP. And only the granting of such concessions would make any muzakarah and future rapproachment worthwhile. If not, it would be better to remain the neutral rather than be associated with the lowdown Burnes, MISsies, fool parliamentarians etcetra that people the PR bog!

But me thinks this is all easier said than done as for so long Islam has been hijacked by diverse parties with equally diverse vested interests, the syariah has become a plaything for all and sundry. Only a sincere implementation of it on Muslims (at least) will show that UMNO and PAS are committed to safeguarding the Ummah from the onslaught of the secular-liberalists (who themselves are intent of subverting Islam via the judicial process..more on this later). To do otherwise, would merely reinforce the perception that shadowplay, that traditional Malay art, has truly not disappeared as an artform from the stage altogether but is rather alive and kicking in the political arena and further strenghten the view that democracy will never allow for the fruition of ........ go figure!
Revert: Well life's a bildungsroman my buffalo....... not a skimpy novelette!!


1.Ahmad Ibrahim & Ahilemah Joned, The Malaysian Legal System (Dewan Bahasa dan Pustaka, Kuala Lumpur,1987) p.54.

2. Faruqi, Shad Saleem(2005): Jurisdiction of Federal and State Authorities to Punish Offenses against the Precepts of Islam : A Constitutional Perspective available at

3. Mohamed Suffian Hashim, ‘The Relationship between Islam and the State in Malaya’, Intisari, Vol. 1. No. 1, p.8.

4. Mohamed Suffian Hashim, An Introduction to the Constitution of Malaysia, second edition, Kuala Lumpur: Government Printers, 1976.

5 .Shamrahayu A. Aziz. Islam As the Religion of the Malaysian Federation: The Scope
and Implications. IIUMLJ, 2006, 14 (33).

6.Harding, A., “Law, Government and the Constitution of Malaysia" (MLJ) (1996), p 136.

7.Bari, Abdul Aziz : "British Westminster System in Asia — The Malaysian Variation
US-China Law Review, Jan. 2007, Volume 4, No.1 (Serial No.26) ISSN1548-6605,USA

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