Baru Bian
IN response to the furore arising from the judgment in the Nik Elin case, Minister in the Prime Minister’s Department (Religious Affairs) Datuk Dr Mohd Na’im Mokhtar was quick to announce that the government is prepared to immediately implement any necessary amendments to Federal Constitution provisions to avoid ongoing conflicts between the jurisdictions of the civil and Syariah courts.
I take issue with his announcement for several reasons.
Firstly, Sabah and Sarawak had agreed in 1963 to the Malayan Federal Constitution as amended to include the Borneo States in the Federation of Malaysia. That was the basic structure of the Federal Constitution as agreed and it is not acceptable that the federal government should so quickly propose to amend it as a knee-jerk reaction to loud noises by parties who have poor understanding of the issues deliberated and ruled upon by the court in Nik Elin’s case.
When the idea of Malaysia was mooted in the early 1960s, the dominant concern of the people of Sabah and Sarawak was the likelihood of the imposition of Islamic law on us, in particular Article 3 which states that Islam is the religion of Malaysia.
The Malaysia Solidarity Consultative Committee on Feb 3, 1962 submitted a document called ‘Memorandum on Malaysia’, of which one paragraph states: ‘The Committee directed a great deal of attention to the question of Islam as the religion of the Federation. It is satisfied that the acceptance of Islam would not endanger religious freedom within Malaysia nor will it make Malaysia any less secular. The present Constitution of the Federation of Malaya, which would serve as the basis for the new Federation has adequately guaranteed that other religions may be practised in peace and harmony in any part of the Federation’.
The Cobbold Commission in its report acknowledged the fears of the people of the Borneo States and stated: ‘Taking these points fully into consideration, we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardises freedom of religion in the Federation, which in effect would be secular’.
The first point of the 18/20 point agreements, which were drafted as proposed terms to the formation of Malaysia, has the following as the first point: ‘While there was no objection to Islam being the national religion of Malaysia, there should be no official religion in Sarawak, and the provisions relating to Islam in the present Constitution of the Federation Of Malaya should not apply to Sarawak’.
The terms of these Agreements were incorporated into the Malaysia Agreement 1963, pursuant to which the Federation of Malaysia was formed.
Secondly, attempts by certain states to elevate the status of Syariah Law to that of the Civil Courts are simply unconstitutional. Malaysia already has a Supreme Law, which is the Federal Constitution.
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 – is the supreme law of the Federation.
The Minister in his announcement mentioned the need to resolve the conflict between Civil Law and Syariah Law. However, in my view, no conflict exists. The issue is not one of conflict between Civil and Syariah laws; instead, it is a question of determining the jurisdictions of the federal and state governments as set out in the Federal Constitution.
In the case of Sabah and Sarawak, Point 16 of the 18/20-Point Agreement should be highlighted: that no amendment, modification or withdrawal of any special safeguard granted to Borneo (Sabah and Sarawak) should be made by the Central Government without the positive concurrence of the Government of the state of North Borneo/Sarawak.
Therefore, the power to amend the Sarawak Constitution or the Federal Constitution insofar as the changes affect the rights of Sarawak belongs exclusively to the people of Sarawak.
This protection is reinforced in Article 161E of the Federal Constitution, which provides safeguards for the constitutional position of Sabah and Sarawak, whereby no amendment of the Constitution can be made without the concurrence of the Governor if it is to affect the constitution and jurisdiction of the High Court in Sabah and Sarawak, and the religion in the state.
These safeguards were promulgated to ensure that our rights cannot be taken from us without our consent.
Finally, the Doctrine of Basic Structure, which has been upheld by the Courts, does not allow Parliament to alter the basic structure of the constitution like secularism, democracy, federalism, and the separation of powers.
Retired Court of Appeal judge Dato Seri Mohd Hishamudin Yunus affirmed this when he said in his recent talk ‘The Malaysian Contours Of Federal Constitution: Negotiating Between The Sacred And Secular’ that based on the doctrine of basic structure, Parliament cannot amend the Federal Constitution to change Malaysia from a secular state to an Islamic state.
Any attempt to amend Schedule 9 is a serious matter which would offend this Doctrine and destroy the spirit of MA63. Full disclosure and prior consultation must be made with Sarawak and Sabah if any such proposal is being considered.
The increasing Islamist movement in certain states of Malaya shows that the fears of our forefathers are becoming real, and enabling attempts to elevate Syariah laws will shake the foundation upon which the Federation of Malaysia is built, from the perspective of Sarawak and Sabah.
The Madani Government should have as much concern for the people of the Borneo States as it appears to have for the people of the increasingly Islamist states.
Baru Bian is assemblyman for Ba Kelalan.
