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Parliament must address the grave issues undermining national unity and inter-religious harmony created by the Moorthy case by restoring the unchallenged 31-year position before 1988 on the supremacy of the Constitution and the powers of judicial review of the High Court
The candlelight vigil
the Malaysian Consultative
Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS) in front
of the Kuala Lumpur High Court last night is a clear expression of the
concern of the non-Muslim community over the interpretation of Article
121(1A) of the Constitution resulting in no legal recourse for non-Muslims
to challenge Syariah Court decisions.
In the 1992 Dalip Kaur case, Hashim Yeop Sani, CJ correctly ruled that Article 121(1A) does not oust the jurisdiction of the High Court to interpret any written laws of the states enacted for the administration of Muslim law.
With the injustices created by the Moorthy case, the call by the MCCBCHS for an amendment of Article 121(1A) to restore the supremacy of the Constitution and the powers of judicial review of the High Court is timely, especially as the 1988 Constitutional Amendments which included the insertion of Article 121(1A) was rushed through Parliament without giving adequate time for MPs and the country to study and debate their far-reaching implications.
The 1988 Constitutional Amendment Bill was tabled in Parliament for first reading on 17th March 1988 and passed the next day on 18th March 1988, with 142 MPs in support and 18 MPs in opposition (including 17 DAP MPs). Seven DAP MPs were in detention under the Internal Security Act in Kamunting Detention Centre under the infamous Operation Lalang, namely Karpal Singh, Dr. Tan Seng Giaw, Lim Guan Eng, Lau Dak Kee, the late P. Patto, the late V. David and myself.
Article 121(1A) has created grave injustices, not only in the Moorthy burial case but also in children custody cases like Shamala Sathiyaseelan's two sons. In this case, her formerly Hindu husband, Dr Jeyaganesh C Mogarajah converted to Islam in late 2002 and, about a week later, converted their two children, aged two and four, in Shamala's absence.
In the ensuing legal tussle, the Kuala Lumpur High Court ruled that the civil court could not nullify the conversion of the two children. At the same time, said the judge, the syariah court did not have jurisdiction to hear Shamala's application for nullification because she was a non-Muslim.
Parliament must put right the wrongs that have been highlighted by the Moorthy case, that there is no legal remedy for injustices suffered by non-Muslims in the interpretation of Article 121(1A).
Both Muslim and non-Muslim MPs should unite to remove the injustices created by Article 121(1A) by restoring the unchallenged supremacy of the Constitution before 1988 and the powers of judicial review of the High Court.
Parliamentary Opposition Leader, MP for Ipoh Timur & DAP
Central Policy and Strategic Planning Commission
Parliamentary Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic Planning Commission Chairman