PETALING JAYA: Former chief justice Ahmad Fairuz Abdul Halim has misread the Federal Constitution and ignored a judicial precedent in claiming that Islamic law is above civil legislations, a retired judge said today.
Former Federal Court judge Gopal Sri Ram said Fairuz should not read in isolation a single provision – Article 3(1) which states that Islam is the religion of the Federation – to assert Islamic law’s applicability in Malaysia.
He said Article 4(1) made it clear that any law that came into force after Merdeka Day on Aug 31, 1957 and which was inconsistent with the supreme law of the land (the Constitution) shall be invalid.
He said it was important to note that Article 4(1) says “inconsistent with this constitution” and not “inconsistent with any provision of this constitution”.
“Therefore, Article 3(1) which says that Islam shall be the religion of the Federation is irrelevant when testing the constitutional validity of a post-Merdeka law,” said Sri Ram.
He also said it was most regrettable that Fairuz had conveniently overlooked the five-man bench ruling of the 1988 Supreme Court case of Che Omar versus Che Soh.
The apex court had then held that a law inconsistent with Islamic scriptures was valid because Malaysia has a secular constitution.
Sri Ram said this in response to a lecture by Fairuz titled ‘Islam as the Law of the Land’ where he interpreted the constitution in a manner that makes Islamic law the second most supreme legislation in Malaysia.
Fairuz, who in 2008 was implicated by the Royal Commission of Inquiry in the V K Lingam video scandal in judicial fixings, said civil laws that went against Islamic laws’ main sources – the Al-Quran and Sunnah – would be unconstitutional.
He said 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.
Fairuz had led the majority ruling in the Lina Joy conversion case in the Federal Court in 2007.
Lina, a Malay-Muslim, wanted to embrace Christianity to marry her boyfriend, but the National Registration Department (NRD) insisted she produce a certificate from the shariah court, which she did not possess.
Her lawyers had argued that the NRD only needed to consider the baptism certificate from the church to facilitate the change in religious status. The Federal Court rejected her appeal and ruled that “a person who wanted to renounce his/her religion must do so according to existing laws or practices of the particular religion”.
Sri Ram said Ahmad Fairuz was inconsistent in Lina’s case as he did not apply the legal principle when delivering a judgment as a High Court judge in the case of Haji Ismail bin Suppiah v Ketua Pengarah Pendaftaran Negara .
In that case, he struck down the action of the NRD that required Ismail to obtain the consent of the religious department of Johor for the purpose of processing his application to effect a change of his name from an Islamic to a non-Islamic name.
“However, no written judgment was delivered by Ahmad Fairuz in that case. It is obvious that he has also forgotten the stand he took where he refused to give precedence to Islamic law,” Sri Ram added.
Sri Ram said Lina’s case had nothing to do with constitutional law or the application of Islamic law and the former chief justice’s stand in the case was irrelevant and not binding in a court of law.