The Article 11 Forums – The Background
a) Moorthy’s Case – The Issue Confused
When Moorthy died in late 2005, his widow was told that, unknown to her, Moorthy had embraced Islam and, as a result, was to be buried according to Islamic rites. She turned to the civil High Court, seeking an order that her husband died a Hindu and that she be allowed to take and cremate his remains. Her application was denied without any judicial consideration of the evidence she proffered. The reason – the Syariah Court had, after hearing the Majlis Agama and without hearing her, determined that the deceased was a Muslim and the civil High Court had no jurisdiction to review that decision.
The immediate reaction to this decision was a clamour by certain quarters of civil society, representing the non-Muslim community, for amendments to Article 121(1A) of the Federal Constitution so as to protect the rights of non-Muslims (Interfaith group seeks constitutional amendment). This was regrettable for 2 reasons.
Firstly, it distracted attention from the real issue arising from Moorthy’s case: denial of access to justice for the widow. Predictably, Muslims reacted to oppose the call to amend Article 121(1A). These opposing viewpoints gave rise to the spectre of a “Muslim versus non-Muslim” conflict (Teras: Do not touch syariah jurisdiction) (Perkara 121: PM diminta jangan tunduk pada desakan). Unfortunately, this served the ends of those who stood to gain the most if the Muslim population could be alarmed into thinking that Islam was under siege.
Secondly, it distracted attention from the need to rectify:
· the amendment to Article 121(1)
· the misapprehensions as to the effect of Article 121(1A) ; and
· the misapprehensions as to the status of the Syariah Courts.
I will explain.
If the real issue in Moorthy’s case was one of access to justice and did not arise from the terms of Article 121(1A), what was the root of the problem? The answer, in my view, was the amendment to Article 121(1) and how this amendment was being perceived by our judges.To understand this, it may be helpful to first understand the scope of the original, unamended Article 121(1) in the context of the doctrine of separation of powers upon which our system of government is founded.
Article 121(1) originally provided that the ‘judicial power of the Federation’ was to be vested in the High Court of Malaya and the High Court of Borneo. It is important to understand that this meant that our High Courts derived their judicial authority from the Constitution and were not beholden to the Executive or Parliament. Similarly, other provisions in the Constitution conferred the executive and legislative powers of the Federation on the Executive and Parliament respectively. Hence the term ‘separation of powers’. Three arms of government, that is, the executive, the legislature and the judiciary, equal, independent and separate.
The independence of the judiciary, in particular, is crucial from the citizens’ point of view, for it is to the judiciary that we turn to if laws passed are unconstitutional or executive action is unlawful.
This changed in 1988. The new Article 121(1) now provided that the High Courts of Malaya and Borneo“shall have such jurisdiction and powers as may be conferred by or under federal law”. Do you see the difference? Previously all juidical power of the federation was, by the Constitution, vested in the High Courts. Now, the High Courts would have such jurisdiction and power as conferred by Parliament. And as we all know, Parliament is dominated by the Executive.
Did the amendment to Article 121(1) have the effect of taking away the powers of the High Courts that it enjoyed prior to the amendment? Justice Gopal Sri Ram did not think so. His Lordship observed in the Sugumar case that even as the amendment to Article 121(1) deleted the words ‘judicial power of the Federation’, ‘in accordance with well-established principles of constitutional interpretation, the deletion does not have the effect of taking away the judicial power from the High Courts’.
Sadly, not all judges have brought as clear a mind to this issue as did Justice Gopal Sri Ram. A great many may well perceive that the High Courts are now devoid of any judicial power save that which Parliament in law and in reality, the Executive, allows. In the minds of these judges, then, the High Courts are no longer an equal, independent and separate arm of government under the Constitution.
The clamour to amend Article 121(1A) deflected attention from the real problem: the amendment to Article 121(1) and its impact, real or imagined, on the status of the civil High Courts as an equal, independent and separate arm of government.
Some members of the judiciary have a skewed reading of Article 121(1A), interpreting it to preclude the civil High Courts from hearing any matters that they perceive are to do with Islam. Some judges also have the legally unjustifiable notion that the Syariah Courts are of equal jurisdiction with the civil High Courts. These distorted perceptions, coupled with the problem occasioned by the Article 121(1) amendment, laid the foundation for the injustice that occurred in the Moorthy case. The High Court judge noted that the Syariah Court had, without hearing the widow, made an order that Moorthy died a Muslim. However, he:
· ignored the decision of the Supreme Court in Tan Sung Mooi that jurisdiction over a dispute involving a Muslim and a non-Muslim remains with the civil courts
· held that the question as to Moorthy’s faith at the time of death had been decided by the Syariah Court and found himself to be incompetent to look into the legality of the order of the Syariah Court
The plain language of Article 121(1A) is innocuous. The amendment does not add anything to the jurisdiction of the Syariah Courts nor take anything away from the jurisdiction of the civil High Courts. It merely states that if a matter was within the jurisdiction of the Syariah Courts, the civil High Courts would not exercise jurisdiction in those matters. It did not alter the status of the Syariah Courts as it stood before 1988. If the Syariah Court was an inferior court before the constitutional amendments of 1988, as I believe it was, nothing changed with those amendments. (Syariah courts are inferior to civil courts)
Thankfully, there were some who realised that the real problem lay not with the written law but with the failure of judges to carry out their duty to interpret and enforce the law. One federal minister ( Nazri tries to cool anger over Muslim burial dispute ), the former Attorney-General who held office when Article 121(1A) was made law ( Interpret constitution boldly, former AG tells judges ) and many in civil society saw the problem for what it was. ( Courts should hear merits of Moorthy’s case ) ( Syariah Court should hear both sides )
It was heartening to receive the Prime Minister’s confirmation that Article 121(1A) would not be amended or repealed and his stated reasons that the law regarding jurisdiction, as declared in that Article, was clear. However, a real cause for concern was the Prime Minister’s erroneous view that non-Muslims could submit to the jurisdiction of the Syariah courts. Nonetheless, the Prime Minister gave reason for hope when he acknowledged the utility of a healthy debate on these difficult issues, allowing for an objective and unemotional discussion without stirring up public or racial sensitivities (Article 121(1A) – No change). Equally encouraging was the assurance given by the Deputy Prime Minister that the government would hear the views of all quarters, study the issue and find a solution satisfactory to all without jeopardising the position of Islam (Najib : Changes will not affect Syariah Court).
b) Nyonya Tahir Case: The Issue Further Confounded
Nyonya Tahir was born in 1918 and raised by her Malay grandmother and her Chinese grandfather who had converted to Islam. She married a Chinese man when she was 18 and practised Buddhism most of her life. In a written declaration, she said that she wanted to remain a Buddhist and wanted, upon her death, to be buried according to Buddhist rites. When she died, the Negeri Sembilan Islamic Affairs Council (MAINS) and Negeri Sembilan Islamic Affairs Department (JHEAINS) applied to the Syariah Court for a decision on Nyonya’s religious status and the request of her family to bury her according to Buddhist rites. There was also a request from her family: the children provided affidavits and 8 of Nyonya’s 13 children went to the Syariah Court and asked the authorities to allow them to bury her as a Buddhist. The Syariah Court declared her to be a non-Muslim and she was buried according to Buddhist rites.
Many in civil society were relieved that Nyonya Tahir’s family members were not subjected to the same trauma as Moorthy’s next-of-kin. However, many were concerned that the approach adopted by the Syariah Court, in allowing Nyonya Tahir’s non-Muslim family members to give evidence by affidavit distracted attention away from the most unsatisfactory consequence of the hearing to determine the faith of Nyonya Tahir proceeding in the Syariah Court: her family members could not appear or be heard as a party in those proceedings because of the provision in Item 1, List II, 9th Schedule of the Federal Constitution. That provision plainly limits the Syariah Court’s jurisdiction to only persons professing the religion of Islam. Yet the Nyonya Tahir decision was now being touted as the solution to the problem perceived to have been thrown up by the Moorthy case.
It was further cause for concern that the Prime Minister, too, languished under the misapprehension that the Syariah Court’s jurisdiction extended beyond persons professing the religion of Islam.
c) Attorney General’s Chambers: Constitutional or Syariah Office?
Even as the Prime Minister confirmed that Article 121(1A) would not be repealed or amended, he informed the public that the Attorney-General would consult various parties and then advise the cabinet on any changes to be effected in the law (Article 121(1A) – No change ). However, this information could hardly be expected to reassure the concerns of civil society given that the Attorney–General’s Chambers’ website had also for some time announced a Syariah division whose stated objective is to undertake a review of all civil laws to ensure their compliance with Syariah laws.
Given the confirmation by the Supreme Court in 1988 in Che Omar Che Soh that Malaysia is a secular nation and that Syariah law is to be applied only within a narrow sphere and only with respect to persons professing the religion of Islam, one would have expected the Attorney-General’s Chambers to scrutinise Syariah laws to ensure compliance with the Federal Constitution! In light of the sense of insecurity hanging over a significant number of civil society, both Muslim and non-Muslim, the Prime Minister’s announcement, if intended to allay concerns, failed.
d) Islamic State Claim & Islamisation: Increased Impact On Civil Society
Islamic State?
There have been increasing claims that Malaysia is an Islamic state. In 2005, Malaysians witnessed unseemly conduct in the Dewan Rakyat when the Member of Parliament (MP) from Jerai demanded that anyone who could not accept that Malaysia is an Islamic state should “get out”. (Drama in the Dewan Rakyat)
The Jerai MP has not been alone in this claim that Malaysia is an Islamic state. When SUHAKAM requested clarification with respect to such claims, the federal government confirmed the claim, stating, as one of its reasons, that Malaysia had been established by Muslims! The federal government’s position on this issue is plainly at odds with the position as stated in the Reid Commission report and the pronouncement of the Supreme Court in Che Omar Che Soh.
In July 2005, the Terengganu state government machinery, led by the Besut Land Administrator, moved to demolish the village in Besut, Terengganu which had come to be known as the “Sky Kingdom”, notwithstanding the existence of an order of the Kuala Terengganu High Court halting any further action by that Land Office. It was common knowledge that the inhabitants of that village had for some time been monitored by the federal and state Islamic religious authorities for deviant practices and that authorities had been threatening to take action against the commune.
In September 2005, the Court of Appeal dismissed the appeal of Lina Joy, an apostate from Islam. Lina had appealed against the Kuala Lumpur High Court’s decision refusing her application for orders that the IC department delete the term “Islam” from her IC. The IC department had notified Lina that her application could only be allowed if she could produce a Syariah Court order confirming that she was an apostate.
In dismissing her application, the High Court had held that firstly, only the Syariah court had the jurisdiction to determine if Lina was a Muslim. The Court then went on to conclude that Lina, being a “Malay” as defined in Article 160(2) of the Federal Constitution, could not renounce Islam, notwithstanding that Article’s stated limited application. Although the majority of the Court of Appeal that dismissed the appeal does not appear to have approved of the second part of the High Court’s decision, they held that the requirement imposed by the IC department was reasonable, notwithstanding that the IC department’s written regulations did not allow for it.
The Court of Appeal’s decision effectively means that Lina, who had evidenced that she is a practising Christian and had been baptised some time earlier, is still unable to marry the man of her choice. She presented clear evidence that she does not profess the religion of Islam, yet the executive arm of government (through the IC department) and the judiciary required this self-admitted non-Muslim to submit to the Syariah court’s jurisdiction to confirm that she is not a Muslim. Until then, she cannot get on with her life.
In August 2005, Daud Mamat and Kamariah Ali were charged in the Kuala Terengganu High Court with breaching a fatwa in force in Terengganu. Both Daud and Kamariah had sworn statutory declarations in August 1998 renouncing Islam and had openly stated this in the Kota Bharu Syariah High Court in November 2000. Kamariah faced an additional charge of having falsely said, in the Besut Syariah Lower court, that she was not a Muslim, with a view to avoiding that court’s jurisdiction.
Both Daud and Kamariah then filed applications in the Kuala Lumpur High Court for declarations that all Syariah laws, courts and enforcement officers had no jurisdiction over them as they had, by their own declarations in 1998, renounced Islam. In December 2005, the Kuala Lumpur High Court dismissed their applications after upholding preliminary objections by the Attorney-General’s chambers, the Terengganu State Legal Advisor and the Terengganu Islamic religious authorities that the civil courts had no jurisdiction to grant the reliefs sought.
It was clear that in the Lina Joy, Daud Mamat and Kamariah Ali cases, because the focus had centred on arguments of departmental power and jurisdiction, the plight of these individuals who are unable to get on with their lives went unnoticed.
In January 2006, the Putrajaya Islamic Religious Department formed a “snoop squad” to “spy” on Muslims to “advise” those thought to be “misbehaving”. What was most disconcerting was the fact that in the previous year, the federal government had intervened to order the disbanding of a similar initiative in Malacca. Yet the Islamic religious authorities in the federal capital were prepared to defy this clear directive right under the federal government’s nose. Once again the government had to intervene to put a stop to the initiative. (Morality squad will obey order to disband)
In February 2006, one federal minister acknowledged that Islam was being politicised by both UMNO and PAS in the race to capture the votes of Muslims. At a dialogue between Dato’ Seri Mohd Nazri Abdul Aziz and the Bar, I had asked the Minister if the Prime Minister was being held to ransom by a handful of Muslim hardliners who portrayed themselves as speaking on behalf of the majority of Muslims. Dato’ Nazri had urged the moderates in this country to speak up so that politicians might hear them and so that they might not be ignored. (Nazri: Islam used at nation’s expense)
e) Rationale behind Article 11’s forums
The above, then, was the backdrop against which Article 11 decided to hold a series of forums. The following, in my view, would fairly represent the aspirations of the coalition in resolving to hold the forums:
i) to raise awareness that behind complex arguments of law in the Lina Joy and Kamariah cases there are human tragedies of fellow Malaysians who are unable to get on with their lives;
ii) to clarify that the issue that emerged from the Moorthy case was not one of a Muslim/non-Muslim contest but one of denial of access to justice, possibly linked to some judiciary members’ reticence to fulfill their oath of office. This is of concern to all members of civil society, Muslim or not;
iii) to create greater awareness among Malaysians as to the full rights guaranteed under the Federal Constitution, and the secular nature of our system of law and administration established thereunder and categorically confirmed by our highest court in 1988. Also, to make clear that this system of law and administration had, until recently, operated harmoniously with the constitutional provision that Islam is the religion of the federation;
iv) to draw our national leaders’ attention to the growing concern, of both Muslim and non-Muslim members of civil society, of the impact of the “Islamisation” process being advocated and, in some cases, effected by certain (including governmental) quarters. This process is seen as impinging on our pluralistic and inclusive way of life as guaranteed under the Federal Constitution and is seemingly putting a theocracy in place;
v) to draw attention to a dangerous tendency to disregard the plain provisions of the Federal Constitution. This was evident in the Nyonya Tahir case where the limitation of the Syariah court’s jurisdiction was disregarded; and
vi) to afford civil society an avenue by which all views could be articulated and brought to the attention of our national leaders.
Article 11’s early concerns arose from the denial of a mother’s right to be heard on the religious upbringing of her young children. The coalition has evolved, in under 2 years, into a civil society effort that seeks to address several critical issues confronting our nation today.
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