Letter to Prime Minister on Parliamentary Roundtable call for Parliamentary Select Committee and constitutional amendment to restore the “social contract” on the supremacy of the constitution and the civil courts affecting the rights of non-Muslim Malaysians

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Media Statement
by Lim Kit Siang  
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(Parliament, Monday): I have written to the Prime Minister, Datuk Seri Abdullah Ahmad Badawi on the call by the Parliamentary Roundtable last Thursday for a Parliamentary Select Committee and constitutional amendment to restore the “social contract” on the supremacy of the constitution and the civil courts affecting the rights of non-Muslim Malaysians.

I welcome the stand by the Minister in the Prime Minister’s Department Datuk Seri Radzi Sheikh Ahmad that the controversial Article 121(1A) of the Federal Constitution, which has been interpreted by judges as prohibiting Civil High Courts from jurisdiction over Syariah Courts, should be amended to make the jurisdiction of the civil courts clearer.

Article 121(1A) stipulating that civil courts “have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts”  was amended by Parliament in March 1988 to resolve the conflict in decisions of the Syariah courts and the civil courts affecting Muslims in a number of cases.

It was never intended to oust the jurisdictional powers vested in the civil courts resulting in gross individual, judicial  and constitutional injustices to non-Muslim Malaysians highlighted recently in the case of S. Kaliammal, the widow of the late Everest mountaineer  L/Kpl M. Moorthy, who was denied any  right to a judicial  remedy.

As one  panelist at the Roundtable succintly described the nub of the controversy over  Article 121(1A) in the Moorthy case, it should be the distinction between two statements: Firstly, “Is he a Muslim?”; and secondly, “He is a Muslim”.

If there is no dispute about a person being a Muslim, then it is for the Syariah court to exercise jurisdiction. If the issue is over  “Is he a Muslim”, then it is for the civil courts to exercise jurisdiction.

Suhakam Chairman Tan Sri Abu Talib, who was Attorney-General at the relevant time of the 1988 Constitution Amendment, confirmed at the Parliamentary Roundtable that Article 121(1A) in 1988 was never intended to oust the jurisdiction of the High Court to review decisions of the Syariah courts on jurisdictional disputes like the Moorthy case.

The public interest question is: How can the Attorney-General Chambers which had not intended when Article 121(1A) was amended in 1988 to adversely affect the judicial rights of non-Muslim Malaysians, change its stand 17 years later in 2005 to contend that the rights of the non-Muslim Malaysians have been affected to their detriment to the extent of losing all judicial remedy, as highlighted by the following exchange in the Moorthy case in the High Court (as reported by Star, 28.12.05):

During the hearing, Justice Md Raus asked why Nasir, who represented HKL and the Government, did not produce forms relating to Moorthy’s alleged conversion to Islam.  (Nasir is Senior Federal Counsel Mohd Nasir Isa who also represented the Federal Government)

Nasir did not reply but argued that the proper forum to adjudicate the matter was the Syariah High Court. 

Judge: What is the remedy for the family then? The widow is not a Muslim and she cannot go to the Syariah Court, so she comes to the civil court.  

Nasir: It is not the function of this court to provide remedy for this matter. The fact that she cannot go to the Syariah Court does not mean that she can go to a civil court. 

Judge: She is not a Muslim and cannot go to a Syariah Court. When she goes to a civil court, the respondents there will say that the case cannot be tried in a civil court. So, she has no remedy? 

Nasir: Yes. She has no remedy.  

That answer was greeted with loud murmurs from the public gallery. 

The judge then asked: Is there something wrong then?  

The whole court went silent. 

The Malaysian public  is entitled to an answer from the Attorney-General Tan Sri Gani Patail as to how the Attorney-General’s Chambers could alter its stand 17 years ago in 1988 that Article 121(1A) was not meant to adversely affect the rights of non-Muslim Malaysians to one which left non-Muslim Malaysians stranded without any judicial remedy.

Isn’t it the duty of the Attorney-General, as the chief legal officer of the government, to uphold the “social contract” and protect the fundamental rights of all Malaysians and not to allow them to the eroded to the extent that non-Muslim Malaysians have lost their right to a judicial remedy in cases under Article 121(1A)?

The proposal to resolve the  injustice highlighted in  the Moorthy case by providing non-Muslims  access to the syariah courts is no real solution, as it does not restore the “social contract” principle that non-Muslims should not be affected by Syariah Courts to their detriment as in denying them a remedy in the Civil Courts, not only in questions of conversion, but also guardianship, custody, upbringing and religious education of children when one spouse converts to Islam, divorce, distribution of property, etc.

The Cabinet at its meeting on Wednesday should restore  the “social contract” on the supremacy of the constitution and the civil courts affecting the rights of non-Muslim Malaysians.

(09/01/2006)