The Curse Of God On Those Who Lie
I have been very closely involved with both the effort to establish the Interfaith Commission of Malaysia (IFC) and the series of forums entitled “Federal Constitution: Protection for All” initiated by the coalition of NGOs known as Article 11.
I can therefore tell you from my own knowledge that the claims, by groups such as Badan Anti-IFC (BADAI), PAS and Teras Pengupayaan Melayu (Teras), that the Article 11 forums were a surreptitious attempt to resuscitate the IFC effort, are lies.
The object of this paper is two-fold.
Firstly, to present the truth and to expose the lies that have been directed at the Article 11 coalition and the series of “Federal Constitution: Protection For All” forums.
In so doing, it may become necessary to explain why I feel compelled to oppose the process of “Islamisation” that certain individuals and groups (who claim to speak for, and represent, the majority of Muslims in Malaysia) advocate for and seek to have implemented. This is detailed in the Second Paper ( still under construction )
2. The Lies About Article 11
Consider the following three widely disseminated media statements that provide examples of the lies.
In a media release dated 16 May, 2006 issued by BADAI, which has admitted to have spearheaded the Penang Demo, Mohd Hafiz Nordin said:
“BADAI menyangkal dakwaan Haris Ibrahim bahawa penunjuk perasaan tersalah maklumat bahawa forum tersebut tidak kena mengena dengan IFC, sedangkan mereka mempunyai agenda tersembunyi dan kami mengetahui perkara ini berdasarkan 2 forum yang telah dibuat sebelum ini di Petaling Jaya and Melaka … Perjuangan mereka … adalah bukti niat jahat mereka dan agenda terselindung mereka untuk menubuhkan IFC”.
In his Harakahdaily article entitled “Agenda halus tubuhkan IFC berterusan” which appeared on 25 May 2006, Salahuddin Ayub [of PAS] called on the government to:
“mengambil tindakan ke atas Kumpulan Artikel 11 yang kini giat mempromosikan idea penubuhan IFC atas nama kebebasan agama”.
He further quoted the following from a memorandum issued by the DEWAN Pemuda PAS Pusat:
“DPP Pusat percaya Kumpulan ini menggunakan platform road show yang mereka sedang rancangkan di seluruh negara ini bagi meneruskan agenda dan misi mereka yang masih belum dapat dilaksanakan iaitu penubuhan Suruhanjaya Antara Agama (Inter Faith Commission) yang sepatutnya ditolak oleh pihak Kerajaan tetapi malangnya hanya ditangguhkan perlaksanaannya sepertimana yang diumumkan oleh YAB. Dato’ Seri sebelum ini.”
In a 1st June 2006, Harakahdaily report entitled “Hentikan kempen sentuh sensitiviti umat”, Azmi Abdul Hamid of Teras, when asked if the Article 11 coalition was connected to the IFC initiative, purportedly replied:
“Mereka yang mencadangkan penubuhan IFC. Apabila PM menyatakan IFC ditangguhkan mereka mencuba cara lain. IFC sebenarnya tidak mati. Sebab itu timbul Artikel 11. Masih ada lagi kempen seperti ini yang akan dilancarkan.”
Mohd Hafiz, Salahuddin and Azmi claim, in one way or another, that the Article 11 coalition was formed to further the effort to establish the IFC and/or that the coalition was using its forums as the platform to establish the IFC. Mohd Hafiz has refuted my explanation, given to the media after the disruption of the Penang forum, that the Article 11 forums had nothing to do with the IFC effort.
I was present at all the Article 11 forums. I was also directly involved in their planning and organisation. On the other hand, to the best of my knowledge, none of these three individuals attended any of the forums.
As I was also closely involved with the IFC effort, I can therefore tell you from my own knowledge that claims that the Article 11 forums were a clandestine attempt to further the IFC effort are blatant untruths. Both the IFC and Article 11 initiatives have been open and transparent, and information about them publicly and readily available. It is therefore inconceivable that these 3 individuals honestly believe that what they have been saying about Article 11’s forums is the truth.
Mohd Hafiz Nordin, Salahuddin Ayub and Azmi Abdul Hamid have given false testimony.
To these three individuals and all others who have demonised the Article 11 coalition and forums with lies, I am commanded to ask:
If Mohd Hafiz, Salahuddin and Azmi persist in these untruths, I am guided by the Holy Qur’an to ask:
So why lie? And how would dishonestly associating Article 11 and its forums with the IFC effort help the cause of those who opposed the former? Why do the perpetrators of the lies oppose Article 11 and the forums? I will deal with these questions in detail later. For now, let me briefly state here why, in my view, these lies were resorted to so that, as I present the facts in the main part of this paper, you can evaluate those facts for yourselves and judge whether I am correct in attributing certain motives to Article 11’s opponents.
In a nutshell, the lies have been devised in order to impair civil society’s efforts to raise awareness about the ongoing “Islamisation” process in the country. The lies are being spread by those who seek to further this “Islamisation” process and who see Article 11’s activities as a threat to their agenda. Linking Article 11 with the IFC is their strategy to halt this latest effort aimed at questioning the “Islamisation” process. Let me elaborate.
For a long time, those pursuing an “Islamisation” process in this country had a “blank cheque” to do so. Laws passed, supposedly in furtherance of this process, were hardly scrutinised in the legislative assemblies. Non-Muslim legislators steered away from these proposed laws, thinking these were intra-Muslim issues. Muslim legislators, fearful of being castigated as anti-Islam if they challenged the appropriateness of such proposed laws in the context of our multi-racial, multi-religious, constitution-supreme way of life, offered little debate. Non-Muslim members of civil society who ventured to question laws and policies, formulated in the name of Islam, that were impinging on the non-Muslim communities were told that they ought not interfere in intra-Muslim affairs.
At some point in time, this started to change. When, precisely, I cannot say. Certainly by 2000 or thereabouts, even Muslims had begun to question and challenge this “Islamisation” process. These Muslims then came together with concerned non-Muslims, as a civil society that cut across the racial and religious divide, and began raising questions about the direction in which the “Islamisation” process was taking the country.
The IFC effort is, in a sense, the first concrete evidence of that coming together of civil society. This was an endeavour by Muslims and non-Muslims who saw the worth of establishing a statutory body to look into problems of a religious nature in this country.
You will see later how certain Muslim factions, concerned about the IFC initiative, falsely but effectively condemned it as an attack on Islam. Their plan to halt the IFC initiative was simple: get Muslims agitated in the belief that the IFC effort was in reality an attack on Islam and the government would be forced to put an end to it. The Steering Committee of the IFC initiative, through Malik Imtiaz, issued a statement to refute those allegations. Regrettably, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism & Sikhism (MCCBCHS) and its then-President, Harcharan Singh, who became the main target of the lies that were circulated portraying the IFC as anti-Islam, for reasons best known to them, never responded publicly to refute those lies, despite appeals from various parties to do so. In the result, those lies proved to be effective. The opponents of the IFC initiative had succeeded in creating the spectre of Islam being under attack by non-Muslims. The government gave in to pressure and the IFC effort was derailed in early 2005.
The Article 11 forums, in my view, represent the latest civil society effort to call attention to the increasing cause for concern with the direction that the “Islamisation” process in Malaysia appears to be heading. Details of the formation of the coalition and the background to the forums appear below. At the first forum in PJ in March 2006, an open letter to the government was launched. It represents all that the coalition and members of civil society who support Article 11 are concerned about, stand for and aspire to:
· that Malaysia shall not become a theocratic state;
· that the government and judiciary uphold the supremacy of the Federal Constitution;
· that governance is in accordance with the Federal Constitution and premised on the
universal values of all Malaysian peoples; and
· that the government recognise the proper position of the judiciary within the
Constitutional framework, as an independent and equal arm of government.
These aspirations are in fact no more than a
plea by citizens that the Federal Constitution be upheld and
given effect to.
Those who oppose the Article 11 coalition and the forums are the very same who favour that “Islamisation” process. Their process requires that Malaysia become a theocracy, that Syariah as contrived by them, and not the Federal Constitution, shall reign as supreme law and that the Syariah Courts shall one day become the ultimate arbiters of the law.
Their scheme, however, envisaged that this process would be gradual so as not to alarm civil society: put Syariah legislation in place but implement the laws piece-meal; consult, and get the approval of the National Fatwa Council before implementing important governmental policies, such as the free distribution of syringes and condoms to counter the Aids problem in the country; recitation of Qur’anic verses over the public address system every morning at the Palace of Justice, Putrajaya; make the tudung compulsory for our uniformed personnel in certain circumstances; get religious enforcement officers to flex their muscle from time to time in public places, including at the business premises of non-Muslims; ban the sale of Malay translations of non-Muslim scriptures; outlaw the use of certain Arabic words by non-Muslims; accord the Syariah Courts a higher status than that provided in law; require that TV programmes conform to these “Islamist” mores and norms; assure non-Muslims that hudud will not apply to them until they see the goodness in it. The list goes on and on.
And at the same time, keep repeating over and over again, “Malaysia is an Islamic state”. Their strategy is to get the people thinking that it is a foregone conclusion that we live in an Islamic state, so that the psychological battle has been won.
Those in favour of the “Islamisation” process and, therefore, opposed to the Article 11 forums, could not openly oppose the aspirations outlined in Article 11’s open letter. To do so would immediately expose their ambitions to establish, in the long term, a theocracy.
Since they could not attack those stated aspirations directly, they elected to oppose the same indirectly. The plan, again, was simple: avoid dealing with the stated aspirations, as this would give rise to a public debate on the “Islamisation” process. Instead, spread lies that the Article 11 effort was a continuation of the IFC initiative. Since the IFC initiative had been falsely but effectively condemned as an anti-Islam pursuit, all that was needed was to agitate the Muslims again into believing that the Article 11 effort was a continuation of the IFC “anti-Islam” agenda. Linking the two initiatives in this manner would re-ignite the anti-IFC opposition and channel it towards Article 11, thus once again compelling the government to intervene to bring another civil society initiative to an end.
Hence the lies.
Let me now take you to the truth. I shall:
i) briefly outline the circumstances that led to the formation of the Article 11 coalition;
ii) detail the events and state of affairs that motivated the Article 11 forums and the matters raised by speakers at the forums; and
iii) expose the lies about the IFC effort, spread principally by the Allied Co-ordinating Committee of Islamic NGOs (ACCIN).
To Muslims who will have occasion to judge whether what I assert here is the truth, please remember God’s exhortation to do justice and His condemnation of the rejecters of the truth.
In April 2004, the High Court dismissed Shamala’s application for a declaration that the conversion of her two children to Islam by her husband violated her equal right, as their parent, to determine their religious upbringing. The High Court Judge acknowledged that the Syariah Court has no jurisdiction to hear Shamala’s case since she is not a Muslim. Nevertheless, the judge held that, since the children are now Muslims, the Syariah Court is the qualified forum to determine their status. The decision is reflective of the increasing ambiguity in questions of access to justice and of jurisdiction in matters relating to Islam and an increasing tendency of the civil superior courts to defer to the Syariah Courts notwithstanding the consequences.This is perhaps best illustrated by reference to the advise offered by the High Court Judge to Shamala even as he dismissed her application :
"Being
a Non-Muslim the Syariah Court has no jurisdiction to hear her. What then is for
her to do? The answer to that is, it is not for this court to legislate and
confer jurisdiction to the Civil Court but for Parliament to provide the
remedy…For the moments as the law stands today I think the only way open for the
Wife is to seek the help of Majlis Agama Islam Wilayah Persekutuan…In the
present case since the two minors are now "saudara baru or muallaf" the wife can
take them to Majlis Agama Islam Wilayah Persekutuan for help and advice to
resolve the said issue".
In July 2004, the High Court granted Shamala actual (day-to-day) custody of the children on the condition that she must not influence their religious (Islamic) beliefs, e.g. by exposing them to her Hindu faith.
Shamala’s case brought home the point that the constitutional role of the civil High Court as the protector of the rights of the ordinary citizen was fast becoming illusory. The implications of this case became the rallying force that drew together a small number of concerned NGOs and members of civil society and, by May 2004, gave life to the coalition known as Article 11.
In June, 2004, Article 11 organised a half-day public forum in Kuala Lumpur with a view to raising public awareness about the ramifications of Shamala’s case and how it impacted on the rights of citizens.
4. 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.
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.
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’.
Justice Gopal Sri Ram, JCA
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
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?
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.
Sky Kingdom Village Demolished
Sky Kingdom on 31st July 2005 Sky Kingdom After 31st July 2005
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.
Daud Mamat and Kamariah Ali Cases
Daud Mamat Kamariah Ali
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.
"Verily
judgment and justice must indeed come to pass."
-- Surah 51 verse 6 of the
Holy
Qur'an.
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.
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