KUCHING: There is no basis to amend Schedule 9 of the Federal Constitution to appease the Islamists in the country, a Sarawak lawmaker said today (March 13).
Ba Kelalan assemblyman Baru Bian, responding to the Minister in the Prime Minister's Department (Religious Affairs) Datuk Dr Mohd Na'im Mokhtar's recent statement that the government is prepared to immediately implement any necessary amendments to the Constitution to avoid ongoing conflicts between the jurisdictions of the civil and syariah courts, said any attempt to amend Schedule 9 would offend the Doctrine of Basic Structure and destroy the spirit of the Malaysia Agreement 1963 (MA63).
The former works minister in the first Pakatan Harapan (PH) government explained the Doctrine of Basic Structure does not allow Parliament to alter the basic structure of the constitution like secularism, democracy, federalism, and the separation of powers.
That doctrine, he added, has been upheld by the courts.
Baru, a senior lawyer in Sarawak, said any attempt to amend Schedule 9 is a serious matter where 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," he said.
Na'im's statement was made in response over the furore arising from the judgement in the Nik Elin case.
Nik Elin, whose full name is Nik Elin Zurina Nik Abdul Rashid, a native of Kelantan, along with her daughter Tengku Yasmin Nastasha Abdul Rahman, challenged the constitutionality and validity of 18 provisions under the Kelantan Shariah Criminal Code (l) Enactment 2019, claiming that the Kelantan State Legislature does not have the power to enact laws on these offences because there are federal laws covering the same.
They filed a petition directly with the Federal Court under Article 4(4) of the Federal Constitution, naming the Kelantan government as the sole respondent.
On Feb 9, the Federal Court supported her legal challenge to annul 16 provisions of Islamic criminal laws enacted by Kelantan, ruling the 16 provisions under the Kelantan Shariah criminal Enactment as unconstitutional.
Baru said he took issue with Na'im's announcement for several reasons.
Firstly, he pointed out 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.
"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," he said.
He also reminded federal lawmakers that when the idea of Malaysia was mooted in the early 1960's, 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.
He reminded them that when the Malaysia Solidarity Consultative Committee on Febru 3, 1962 submitted a document called Memorandum on Malaysia, there was one paragraph which 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."
Baru said 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.