Baru says Federal Constitution is supreme law in Malaysia, not Syariah law

Baru Bian

KUCHING: All leaders of Sabah and Sarawak should make a stand to oppose the proposal by Umno president Datuk Seri Dr Ahmad Zahid Hamidi to strengthen Syariah law through constitutional amendments, said Selangau MP Baru Bian.

The Parti Sarawak Bersatu (PSB) presidential council member pointed out that any attempts to turn this country into an Islamic state would be a clear breach of a fundamental term of the Malaysia Agreement 1963 (MA63), for which Sarawak would have recourse in the courts of law.

He also called on Sabah and Sarawak leaders in the Perikatan Nasional (PN) government to break away from the Perikatan Nasional (PN) coalition and make their stand clear to the public.

“(This is) so voters will know how to cast their ballot when the time comes. As for me, my stand has been consistent that Malaysia is a secular nation and that the Federal Constitution is supreme,” he said in a statement today.

Ahmad Zahid in his policy speech at the Umno General Assembly on Sunday in Kuala Lumpur had said that Umno will strengthen Syariah law if it wins a two-thirds majority in the next general election.

The Umno president had said that two recent court decisions involving issues that concern the Islamic faith have made Muslims extremely “uncomfortable” and there is a need to amend the Federal Constitution to put things right.

Ahmad Zahid was referring to the decisions on the right of non-Muslims to use the word “Allah” and on the Selangor state government being denied the right to enact any shariah criminal law that is already a federal statute.

Last month, Kuala Lumpur High Court Judge Datuk Nor Bee Ariffin allowed a judicial review by a Sarawakian Christian declaring that a Dec 5, 1986 home affairs ministry directive prohibiting the use of certain words by non-Muslims, including Allah, was illegal and unconstitutional.

The other case decided earlier this month involved a nine-member bench at the Federal Court led by Chief Justice Tan Sri Tengku Maimun Tuan Mat, which granted a declaration sought by a 35-year-old man that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 was invalid.

Baru, who is a lawyer by profession, pointed out that Ahmad Zahid’s statement had implied that the Syariah law is weak in Malaysia.

“That is not the case. The status of Syariah law is not the issue here as it has been in operation for many years. The issue arising from the debate surrounding the ‘Allah’ case and the Syariah Criminal Offences (Selangor) Enactment 1995 in fact relates to the supremacy of the Federal Constitution and the secular status of Malaysia.

“As we all know, Malaysia does not have a theocratic government; we are a constitutional monarchy and Article 4 of our Constitution states plainly that “This Constitution is the supreme law of the Federation…”. It does not say that about Syariah law.

“Syariah law is not the supreme law of the Federation and Malaysia is not an Islamic nation. This had been established in the case of Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 by the Supreme Court,” said Baru.

He added that the Rukunegara, which states the fundamental principles of governance directed towards the creation of a just and democratic society, declares these tenets: ‘Upholding the Constitution’ (Keluhuran Perlembagaan) and ‘Rule of Law’ (Kedaulatan Undang Undang).

“It is wrong to perceive that the Syariah Law is weak because of the two cases mentioned above. The first case is to do with freedom of religion which is guaranteed by the Federal Constitution.

“The other case merely affirms that where state laws are found to be inconsistent with the Federal Constitution, then Article 4 provides that the state law has to fail. The judgment in this case is that the state has no power to legislate on criminal matters as that is the jurisdiction of the federal government given by the Federal Constitution.

“In the final analysis, the two cases merely show that when the executive and the state legislative encroaches upon an area not provided for under the Federal Constitution, the Court can declare that their action is unlawful and unconstitutional,” he said.

Baru pointed out it was therefore misleading for the Umno president to say that there is a need to amend the Federal Constitution to strengthen syariah law because of these two court decisions.

“Is he saying that he plans to change the Federal Constitution to make Syariah law supreme? Is he saying that he wants to amend Art 4 and Art 10 of the Federal Constitution? The Borneo States had registered our fear that this would happen.

“Sarawak and Sabah did not sign up for this. We signed up for a secular Malaysia, as evident in MA63, the Malaysia Act, and the pre-formation documents. When we agreed to form Malaysia, it was with the understanding that we remain a nation governed by the rule of law and not by religious laws.

“Our forefathers placed such high priority and importance on the secularity of our country that it was one of the key findings of the Cobbold Commission that there was to be no official religion for Sarawak,” said Baru, who is also Ba’ Kelalan assemblyman.

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