By DayakDaily Team
KUCHING, March 13: There is no basis for the federal government to propose amendment on Schedule 9 of the Federal Constitution to address issues or conflicts between the syariah and civil courts, especially given the safeguards granted to Sarawak and Sabah under Malaysia Agreement 1963 (MA63) that ensure the rights, including the jurisdiction of the High Court in Sabah and Sarawak and religion in the States, cannot be taken away without the consent of the Borneo States.
Ba’kelalan assemblyman Baru Bian stressed this in response to the furore arising from the judgement in Nik Elin Zurina Nik Abdul Rashid’s case against the Kelantan government, where 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.
“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.
“Any attempt to amend Schedule 9 is a serious matter which would offend the Doctrine of Basic Structure upheld by the courts, 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,” he said in a statement issued yesterday (March 12).
When it comes to Sabah and Sarawak, Baru highlighted Point 16 of the 18/20-Point Agreement which dictates that no amendment, modification or withdrawal to any special safeguards granted to Borneo (Sabah and Sarawak) should be made by the Central Government without the positive concurrence of the respective State governments.
“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 safeguards 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,” he said.
Baru gave the reminder that Sabah and Sarawak had agreed in 1963 to the Malayan Federal Constitution as amended to include the Borneo States in the Federation of Malaysia which formed the basic structure of the Federal Constitution.
He emphasised that Sabah and Sarawak agreed to join the Federation of Malaysia in 1963, under the condition that Islam would be recognised as the national religion but with safeguards to protect religious freedom.
He referenced documents such as the Memorandum on Malaysia and the Cobbold Commission report, which supported the notion that Islam could be the national religion without infringing upon the secular nature of the federation.
He also highlighted the 18/20 point agreements, which outlined terms for the formation of Malaysia, including the provision that Islam would be the national religion for Malaysia but not for Sarawak, which would remain secular. These agreements were later incorporated into the Malaysia Agreement 1963, solidifying the terms upon which Malaysia was formed.
Baru argued that the current conflict between civil and syariah courts revolves around delineating the jurisdictions of federal and State governments as outlined in the Constitution.
He criticised attempts by certain states to elevate syariah law’s status to that of civil courts, deeming it unconstitutional given that the Federal Constitution is the supreme law of the land.
“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 which was affirmed by retired Court of Appeal judge Dato Seri Mohd Hishamudin Yunus in his recent talk ‘The Malaysian Contours Of Federal Constitution: Negotiating Between The Sacred And Secular’.
“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,” he concluded. — DayakDaily
