Parliamentary Roundtable on Article 121 (1A) in Parliament (Committee Room 1)
Thursday, 5th January 2006
A Report
Panelists:
(WKK) Rev Wong Kim Kong (MCCBCHS)
(V) Dato’ Vaithilingam (Hindusangam)
(SA) Salbiah Ahmad (Columnist & lawyer)
(MI) Malik Imtiaz (HAKAM)
(RT) Ramdas Tikamdas (Bar Council)
(ATO)Tan Sri Abu Talib Othman (SUHAKAM Chairman)
(LKS) YB Lim Kit Siang (Opposition leader)
(MKS) YB M. Kula Sekaran – Roundtable chairman
(ZI) YB Zaid Ibrahim (Kota Bharu)
(LGE) Lim Guan Eng (DAP leader)
(HS) Hacharan Singh (Interfaith)
(CHS): Chow Heng Soon (Buddhist)
(MKS) 121(1A) was introduced to resolve the conflicts between decisions of civil and syariah courts. Dr Mahathir, the then Prime Minister, said the Muslims were unsatisfied with civil courts’ overriding the decisions of syariah courts.
(LKS) 121(1A) has created judicial nightmare for the non-Muslims, undermined national unity and racial harmony. Although Nazri said that the clause was not intended to oust civil jurisdiction, but remedy was not provided as demonstrated in the case of Moorthy. The purpose of this meeting is to see how Parliament can step in and provide a solution.
(ATO) [who drafted the amendment] In a democratic country, one has to accept the view of majority. 121(1A) will not be a problem if the civil court (CC) has the courage to act fairly and independently. The system is just if the judicial process is in place. The reason for such a clause was that syariah court (SC) was more competent to deal with Islamic affairs. Schedule 9 of the constitution is clear that SC only has jurisdiction over people professing Islam. Yet it has constantly been ignored. However, the constitutionality of law rests upon CC. But none of the C judges are prepared to look at it this way. It’s an abdication of power and function. Therefore it is the problem of the court not the legislation. If the CC judge is true to the oath that he takes, there will be no problem like we are now facing. 121(1A) is not intended to limit CC. As a former AG, the law on contempt of judges was considered.
(ZI) The whole issue is about people and justice. 121(1A) should be abolished. SC has to decide in accordance to the law and it is the responsibility of High Court (HC) to determine whether or not SC’s decision is lawful. As Muslim, I would be assured and comforted knowing that there is a court to judge whether SC decision is lawful or not.
(LGE) HC’s decision affects the family even after the burial of Moorthy. The consequence cannot be overlooked, e.g. the Hindus are disillusioned with HC’s failure to dispense justice. Agree that 121(1A) should be abolished. And there should be a clear-cut example as in which system is paramount and a final court to decide on disputes.
(MI) Moorthy’s case has brought to light the dilemma of many similar cases. It indicates a certain mindset across the board, even within the judiciary. The CC has taken the subject-matter approach and avoid getting involved in anything that is remotely Islamic. For many lawyers and judges, this is an Islamic state and therefore syariah law should apply, e.g. apostasy case (but there is no law forbidding apostasy). Article 11 is not looked at by the HC in relation to apostasy. The issue here is how the judges apply the law. The attitude of the CC is uncaring (it ignores the grievances of plaintiff) and anything that is Islamic is under state jurisdiction. It does not recognise that a person has rights. There is also the inherent conflict among the Muslim judges, Muslim first or judge. Therefore, the attitude of the civil courts and appointment of judges must be addressed. However, to amend 121(1A) would mean that the bill has been exercised correctly. This is dangerous because we want to convey the message that it was conveniently misinterpreted by CC.
(RT) It is a constitutional issue not the issue of faith. Gradually, non-Muslims will be subject to Islamic jurisdiction. Agree with the issue of mindset. Political Islamism is entrenching at all levels. 121(1A) has virtually led to two competing laws in the country. It needs to be amended and the supreme constitutional role of this country must be clarified.
(SA) The idea of human rights is to ensure the rights of minorities are not overrun with. 121(1A) is meant to deny the rights of non-Muslims. SC has no jurisdiction to decide whether or not a person is a Muslim, but the CC. But CC has abdicated its role.
(V) The action of Religious Council and police is a blatant discrimination. Hindusangam objected to 1988 amendment and sent a memo through MIC president to the PM. But the then PM assured them that they would not be affected.
(HS) It is misinterpretation and misconception of Article 3, and Article 8 is being ignored completely. 121(1A) must be abolished.
(CHS) All religious groups must sit together and make things clear.
(WKK) [as spokesman of MCCBCHS] We are Malaysian first, then Christian, Buddhist, Muslims etc. Judicial people are judges first then Muslims, etc. Politicians are first the keeper and representative of people. In terms of 121(1A), MCCBCHS concerns are: the High court’s interpretation of 121(1A) in its refusal to adjudicate on cases involved the entanglement of Muslim and non-Muslim parties leaving non-Muslims with no adequate legal remedy, and the Syariah court apparently being given absolute power to determine whether or not a person has converted to Islam. Our confidence towards the government institution is jeapordized as the civil courts have made themselves ineffective and powerless in defending the fundamental liberties provided by the Federal Constitution. Syariah may eventually be assumed to be the supreme law of the land, a system that is not desirable in a multiethnic and multi-religious society. We urge the Parliament to step in to address the injustice, so that persons who do not profess Islam are not subjected to Islamic law.
Conclusion
At end of the roundtable, the panellists and participants reach the consensus that the following resolutions will be adopted:
Resolution 1
Call for restoration of the pre 1988 Art 121 of the Federal Constitution and the repeal of Art 121 (1A) of Federal Constitution.
Resolution 2
Call on the Prime Minister to agree to the establishment of a Parliamentary Select Committee on the problems created by Art 121 (1A) of Federal Constitution.
Resolution 3
Civil society is gravely concern and dissatisfied with the denial of justice in Moorthy' s case and similar cases.
Resolution 4
This forum expresses grave concern at the manner in which the various state religious authorities enforces Islamic law in particular against non-muslims.
Resolution 5
Call upon the AG and AG's chambers to act in the public interest in Moorthy' s and all similar cases and to represent equality the rights of all citizens with full regards to the entrenched values of equality in the Federal Constitution irrespective of race and religion
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