Attempt to introduce shariah laws a drastic move that breaches spirit of Federation of Malaysia

Shankar Ram Asnani (left) and Russell Lim (right).

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KUCHING, Sept 11: The seemingly drastic move by Deputy Minister for Religious Affairs Datuk Ahmad Marzuk Shaary to introduce four new shariah laws including to control and restrict the development of non-Muslim religions goes against the spirit of the Federation of Malaysia.

Highlighting this, Sri Maha Mariamman Temple Association Kuching president Shankar Ram Asnani and advocate Russell Lim reminded that the Federation of Malaysia would not even have existed without Sarawak and Sabah.

“It is a crucial reminder to all Sarawakians that Sarawak has always been the land of the free. Sabah and Sarawak are equal partners in the formation of Malaysia (in 1963),” they said in a joint statement issued today.


Quoting the first prime minister Tunku Abdul Rahman in his parliamentary debates on April 28, 1962, he stated: “… When the Borneo territories become part of Malaysia, they will cease to be a colony of Britain, and they will be a colony of Malaya – I thought I made it clear – they will be partners of equal status.”

For Sarawak, Shankar and Lim pointed out that there is no official religion in the Sarawak Constitution even though Islam is the religion of the Federation.

“Malaysia is indeed a secular country and this was even recognised in the Federal Court case of Che Omar bin Che Soh v Public Prosecutor (1988) 2 MLJ 55.

“Secularism literally carries the principle of separation of the state from religious control and what is at its root is that there should be no discrimination of all citizens in the name of religion.”

They highlighted an important case to understand how ‘religion’ is considered in the context of the Federal Constitution, referring to Federal Court case of Indira Gandhi Mutho v Pengarah Agama Islam Perak (108) 3 CLJ 181 where at paragraphs [71] and [72], FCJ Zainun Ali, had elaborated on the principle of secularism.

It read: “(5) It is not open for the Syariah courts to enlarge their own jurisdiction by agreements. Where the subject matter is within the purview of the Syariah court but the party appearing before it is not, the matter cannot be brought before the Syariah court. It is trite that the Syariah court has no jurisdiction over non-Muslim parties and non-Muslim parties have no locus before the Syariah court. The jurisdiction of the Syariah courts, in so far as the operation of Islamic law is concerned, is confined to the private aspect and does not extend to its public one. Ultimately, the subject matter is one of personal rather than constitutional law. (paras 68-72).”

“[71] Islam is often understood as an all-embracing concept, consisting of ‘not only the ritualistic aspect but also a comprehensive system of life.’ In this vein, it has been suggested that the dichotomy between the private and public aspects of Islam is likely to give rise to legal difficulties (see Azahar Mohamed FCJ, “The Impact of Parallel Legal Systems on Fundamental Liberties in Multi-Religious Societies” Journal of the Malaysian Judiciary July [2016] JMJ 57). In fact, this dichotomy has long been resolved by the Federal Court in Che Omar Che Soh v. Public Prosecutor [1988] 2 MLJ 55. After tracing the history of British intervention in the Malay States, Salleh Abas LP summarised the notion of Islam as understood by the framers of the Constitution:

“… The religion of Islam became separated into two separate aspects, viz the public aspect and the private aspect. The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler’s power and sovereignty … By ascribing sovereignty to the ruler, ie, to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat … Because of this, only laws relating to family and inheritance were left to be administered and even this was not considered by the court to have territorial application binding all persons irrespective of religion and race living in the state. The law was only applicable to Muslims as their personal law. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only.”

“[72] It is clear therefore that the jurisdiction of the Syariah courts, in so far as the operation of Islamic law is concerned, is confined to the private aspect and does not extend to its public one. Ultimately the subject matter is one of personal rather than constitutional law; “constitutional law requires that the jurisdiction of the ordinary courts to rule finally on matters of legality should be preserved.” (see A Harding, Law, Government and the Constitution in Malaysia (Kuala Lumpur: Malayan Law Journal, [1966] at 137).”
To understand why Sarawak signed as one of the equal partners to the Malaysia Agreement 1963 (MA63), they explained that after the end of the Second World War with the surrender by Japanese General H. Yamamura, Sarawak was ceded to the British Empire on July 1, 1946.

“This was pursuant to the Sarawak Cession Order In Council, 1946. At the Court at Buckingham Palace where His Highness Sir Charles Vyner Brooke, Rajah, acted with the advice and consent of the Supreme Council of Sarawak (Sarawak had an independent Government restored then), ceded to the British Empire the territory of the State of Sarawak and the full sovereignty and dominion over the said State.”

Before the Instrument of Cession, they elaborated that the Sarawak State was never a British Colony but was a British Protectorate unlike Malaya and the Malayan states.

They noted that religion has always been a sensitive issue to discuss, but pointed out that “we in Sarawak are truly harmonious, open and respectful of one another.”

Shankar and Lim stressed that no one should fear nor avoid any open discourse on this issue because a nation will only thrive when its people progress in their minds.

“There is nothing wrong in sharing our views in an objective and respectful manner because this is true democracy.

“When people have the right thinking or right way of thinking, they will not force things onto others. This is better than talking about harmony. One does not need to even trumpet harmony when people have the right thinking because they will automatically learn how to live with others.”

They emphasised that Sarawak is indeed a land where friendship between races of all faiths have been the way of life for the ordinary rakyat, be this at work, or in the public sphere.
“With respect, we must say that the Malayans should follow and learn from Sarawak.”

Chief Minister Datuk Patinggi Abang Johari Tun Openg, they pointed out had at a meeting of Unit for Other Religions (Unifor) which was established on April 27, 2017 for the purposes of promoting inter-religious harmony in Sarawak stated that he would follow “The Medina Charter” to treat all people from different religions as equals.

The Medina Charter or the “Constitution of Medina”, they elaborated, is perhaps one of the earliest written constitutions, promulgated and declared by Prophet Muhammad, which is a significant document declaratory of an understanding and/or agreement reached between all the inhabitants or tribes of Medina to forge harmony, unity and guaranteed the freedom of religious beliefs and practices for all the people who follow the believers, and they will be treated equally as the believers.

“Abang Johari said that he aimed at protecting the state’s unity and would promote harmonious working relations between the people by giving equal rights to every citizen as well as giving them a say in government matters and operating democratically to promote a democratic and inclusive system of governance,” they concluded.— DayakDaily