Monday, March 27, 2017


25 MARCH 2017

The statement by the ex CJ that any laws which run contrary to Islamic scriptures are null and void is completely without basis. His statement is not supported by any compelling legal argument but on his feeling – it is reported that he said ‘I feel anything which is in contradiction to Islam is unconstitutional’. His simplistic misinterpretation of Article 3 of the Federal Constitution is a contradiction of Article 4, which he conveniently ignores.

As an ex-CJ, he should know that Malaysia was formed to be a secular country and remains a secular country. Article 3 of the Federal Constitution does not import the meaning that Shariah is the supreme law of Malaysia but on the contrary there is strong legal and academic opinion that Malaysia is in fact a secular country. This is recognized by the Supreme Court in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, and the ex-CJ should be very aware of this case.

Article 4 of the Constitution declares it simply: “This Constitution is the supreme law of the Federation…”. As said by Raja Azlan Shah in 2003: “ This essential feature of the Federal Constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever enures to the Malaysian people as a whole, for their benefit.” The Federal Constitution - and not the Syariah or Hudud - is the supreme law of the Federation.

Furthermore, the founding father, BAPA MALAYSIA Tuanku Abdul Rahman stated it plainly in Parliament: ‘I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provided that Islam shall be the official religion of the State’ [Hansard, 1 May 1958].

Does Ahmad Fairuz also claim to speak for Sarawak? For us, the stand is crystal clear. The report of the Cobbold Commission, the Inter-Governmental Committee Report and the 1963 Malaysia Agreement reflect the people’s wishes that there should be no official religion for Sarawak. One of the safeguards in the 18-Point agreement is that ‘While there was no objection to Islam being the national religion of Malaysia there should be no State religion in Sarawak, and the provisions relating to Islam in the present Constitution of Malaya should not apply to Sarawak’.

The importance placed on Sarawak having no official religion and on our freedom of religion is reflected in these points being the first of the 18/20 points in the Malaysia Agreement, and stated clearly in the Cobbold Report. Furthermore, our forefathers had signed the Malaysia Agreement with a secular state, and that must remain so.

According to Constitutional lawyer Tommy Thomas, ‘in addition to enjoying constitutional status, the 20 points also have international law status as being part of treaty obligations between sovereign nations. In consequence, if any provision of the 20 points is breached, the United Kingdom can, in law, take up the matter; whether, as a political fact, its government does so is an altogether different matter. Further, such a breach may be justiciable in the Courts of England and Malaysia.’ [The Social Contract :
Malaysia’s Constitutional Covenant; Paper presented at Malaysian Law Conference, KL, 2007.]

My own people, the 5200 Muruts (as we were called then) in the 1960 census were recorded as saying they were very happy and peaceful as they were, and fearful of the effects of the British leaving Sarawak.  It seems their fears were justified, in view of the push by some groups in Malaya for hudud to be implemented.

Ahmad Fairuz’s further remarks that Muslims do not care about equality and are happy to have hudud implemented in this country is also completely baseless. Does he have any research to back up his statement? How can he claim to speak for all Muslims in the country, including Sarawakian Muslims? The weight of his remark is about the same as that of someone’s insistence that the earth is flat.

It is indeed unfortunate that we have an ex-CJ seemingly learned in the law yet making such a gross error in his interpretation of our Constitution. Having had a much criticized and undistinguished tenure as CJ, and a royal commission of inquiry having concluded in 2008 that he was the judge engaged in conversation with VK Lingam over judicial fixing, Ahmad Fairuz should be the last person to advocate for the implementation of hudud law in Malaysia.

Baru Bian
Chairman, KEADILAN Sarawak / N81 Ba’ Kelalan

No comments: