The Federal Constitution, Not Syariah Law, is the supreme law

By Baru Bian


Referring to the UMNO president’s recent statement about their wish to amend the Federal Constitution to strengthen Syariah Laws, the implication of his statement is that 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.

In addition, 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’ and ‘Rule of Law’.

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.

Therefore, it is 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.

Any attempts to turn this country to an Islamic state would be a clear breach of a fundamental term of the 1963 Malaysia Agreement, for which Sarawak would have recourse in the courts of law.

If this is the case that the UMNO president wants to amend the Federal Constitution to make Syariah law the supreme law of the federation, all leaders of Sabah and Sarawak should make a stand to oppose it and break away from the PN coalition. They must make their stand clear to the public 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.

Baru Bian
MP P214 Selangau ADUN N81 Ba’ Kelalan

Related Articles


Latest Articles