The proposed interfaith commission (IFC) was doomed to fail even before the bill was presented at a national conference last February, said a constitutional expert.

Legal advisor to Universiti Teknologi Mara (UiTM) Prof Shad S Faruqi said this was because it failed to convince observers that it was not seeking to override established principles of the Federal Constitution.

Rather than being presented as a bill, the proposed commission appeared to challenge the very premise of the constitution with regards to religious freedom and the position of Islam, he added.

"You are headed for failure if you are formulating a document that appears to be on the wrong side of the constitution and appear to shake some of the fundamental compromises. You're actually predetermining the fate of this bill.

"The bill was about freedom of religion per se. It was not about freedom of religion under the constitution," he told malaysiakini in a recent interview.

Evade constitutional provisions

Explaining that he was not against proposing amendments to the constitution, Shad said the failure of the IFC to genuinely incorporate constitutional provisions relating to certain historical and social realities despite its presentation as a bill under the constitution predetermined its fate.

"The basic rules are provided by the constitution and I'm afraid that you have to comply with it. But if you're dissatisfied with the constitutional set-up ... I have no objection if someone was to call for a rewriting of the constitution.

"(But) then make it such. Make it open and say, 'We're seeking the 47th Amendment to the constitution to amend Articles 3, 4, 11, and so on. By all means, let's have a discussion. If you wish, let's have a discussion to draft a constitutional amendment.

"But once you have a bill under the constitution, it's pointless to draft a bill that may surreptitiously violate, or that may be seen to violate deliberately, adroitly, or cunningly disregard some constitutional fundamentals," he said.

Shad said the bill tried hard to evade constitutional provisions and was more of a call for reform of the constitution and a rewriting of the social contract than the drafting of legislation under the existing constitution.

He also said the plenary statement which followed the conference cited 'religious freedom' without being qualified as 'under the constitution' despite the urging of several participants.

"A Universiti Malaya professor spoke, a Malay lady spoke in the same vein in which I spoke, a practicing lawyer spoke in the same vein in which I spoke. Our views were totally disregarded," he added.

'Extremist statements'

Clarifying that he was not against the topic of apostasy, among other sensitive issues, being discussed by Muslims and non-Muslims alike, Shad said it was among 'human problems' that are deeply divisive and painful but which could not be swept under the carpet.

"I acknowledge issues that are troublesome, deeply divisive, tragic, painful issues but they exist and we have to come to terms with their existence and find a proper forum where things can be discussed in a civilised and peaceful way.

"It would be impossible to avoid it. It would impossible for the IFC to avoid a discussion of apostasy. Apostasy is not just a religious issue, it's a human problem. It tears families apart, it tears husband and wife apart, it tears mothers away from their children.

"It's a political issue. Apostasy (also) has an international dimension in Article 18 of the International Covenant on Civil and Political Rights. Apostasy has a constitutional dimension.

"I think that behind closed door discussion, we have to resolve it. Otherwise, we are simply sweeping things under the carpet. We are sweeping them subterranean, and I don't think that's good," he said.

'What's so special about Islam?'

However, a spirit of militancy seemed to have prevailed over much of the conference rather than that of accommodation, said Shad, who added that even Article 4 (11) providing for restrictions on missionary activities targeting Muslims were challenged.

"There were some people who got up and said, 'what's so special about Islam?' Why should there be seven members from the Council from the Syariah Committee (on the board of the IFC)? Statements of these sorts were made, and they were extremist statements, and they were hurtful."

In response, Shad said the constitution itself indicated the special position of Islam by making at least 28 references to the religion or its institutions.

"There are 25 references to Islam, three references to Syariah, and one reference each to Kadi and Kadi Besar. Islam is the religion of the Federation. That's what's special about Islam," he noted

Shad said it was insensitive for persons to question the special position of Islam in Malaysia in the same way that it would be insensitive to question the position of Christianity in more than 15 countries whose constitutions declare it as their official religion.

"This is not unique. In Britain, in the Philippines, in the Republic of Ireland, (among other countries) Christianity is the religion. In Nepal, Hinduism is the religion. So, Malaysia does not stand out unique in that it has a state religion.

"It's insensitive to say, 'What's so special about Islam?' Well, what if a Sri Lankan was to go to the Republic of Ireland and say, 'What's so special about Catholicism?' Well, it is special because it is in the constitution," he stressed.