PETALING JAYA: A law expert has joined in the chorus of critics that have dissected the controversial stand of former chief justice Ahmad Fairuz Sheikh Abdul Halim that Islamic law takes precedence over civil legislations in Malaysia.
Abdul Aziz Bari said Fairuz’s way of interpreting the Federal Constitution was both weird and convoluted.
“I just wonder what types of approaches and rules he used in interpreting the Federal Constitution while on the bench,” he told FMT.
“Contentions that have far-reaching implications such as those made by Ahmad Fairuz must be made through constitutional amendments by Parliament,” he said.
He said it would not be enough even if it was made in the course of judgment in court by the judges.
“What more by a retired judge who chose to keep quiet on the matter when he was in office,” he said.
Aziz said this in response to a lecture by Fairuz, who was the chief justice between 2003 and 2007, titled “Islam as the Law of the Land”. In it, he had interpreted the constitution in a manner that made Islamic law the second most supreme legislation in Malaysia.
Fairuz had said civil laws that went against Islamic laws’ main sources – the Al-Quran and Sunnah – would be unconstitutional.
He based his argument on the majority judgment he delivered in the case of Lina Joy v National Registration Department in 2007.
In that ruling Fairuz pronounced that Islam was a complete way of life that included all aspects of human activity, including judiciary, politics and economy.
As such, Articles 3 and 4 must be read together to make Islamic law the second most supreme legislation after the constitution, he had said.
Article 3 states Islam is the religion of the federation, and other religions may be practised in peace and harmony in any part of the country.
Article 4 states that any law that comes into force after Merdeka Day on Aug 31, 1957 and which is inconsistent with the constitution shall be invalid
Aziz today stressed that Article 3 is not above Article 4.
He said if the contention made by the former chief justice was right, such a claim would have been mentioned clearly by the constitution or in the report of the Reid Commission, the independent entity responsible for drafting the constitution in 1957.
It is also not in the white paper drafted before independence which contained recommendations on the constitution’s content.
Aziz said the constitution generally had to be interpreted in a direct manner, avoiding all sorts of absurdity and illogical results.
“The words must be given ordinary meaning and the provisions must be looked at within the constitution’s own four walls,” he said
He added that Article 3 was not a provision that overrides other provisions.
Aziz said Fairuz ought to have made an effort to clarify issues such as those triggered by the controversial Che Omar Che Soh case handed down by one of his predecessors, Salleh Abas, in 1988.
The apex court held then that a law inconsistent with Islamic scriptures was valid because Malaysia had a secular constitution.
Retired Federal Court judge Gopal Sri Ram yesterday said Fairuz had misread the constitution and ignored the judicial precedent established in Che Omar’s case.
Sri Ram said Ahmad Fairuz should not read in isolation a single provision – Article 3(1) which states that Islam is the religion of the federation – to assert the applicability of Islamic law in Malaysia.
Earlier, Azrul Mohd Khalib of rights group Bebas, said Ahmad Fairuz had made “sweeping statements” that “totally misrepresented “Malaysian Muslims.
Former law minister Zaid Ibrahim meanwhile said Fairuz’s stand was baseless in interpreting the constitution the way he did.
He said it was “tragic” that lawyers like Fairuz had become preachers and were “willing to disregard the principles of the Federal Constitution”.
Human rights lawyer Syahredzan Johan said the former chief justice appeared to have interpreted Article 3 to mean that Malaysia was an Islamic state.
“Article 3, read together with Article 4, means that Islam has a special position in the country compared to other religions, but it does not make Islamic law supreme,” he added.