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Suhakam Chairman Abu Talib
invited to Parliamentary Roundtable to explain whether as Attorney-General
in 1988, he had intended the new Article 121 (1A) to undermine the social
contract and the fundamental principles that the Constitution and Civil
Courts are supreme
He said the civil court should not have avoided the issue by merely ruling that L/Kpl Moorthy’s conversion to Islam came under the jurisdiction of the Syariah court.
“I think this is a constitutional issue. The individual has the right to choose his or her own religion. Once the person has embraced Islam, he has to act in accordance to the tenets of the religion. Otherwise, there is no meaning or commitment to his conversion.
“Islam is a religion practised according to hukum syarak and the competent person to decide on Islamic matters is the Syariah court.
“But in this case, the civil court should have considered the constitutionality of the amendment to the Federal Constitution, which was presented by the Government and passed by Parliament, and decide whether it is constitutional or not. Because in the matter of constitutionality, the civil court is competent. Unfortunately, the court had chosen to refrain from doing so.”
I am inviting Abu Talib to the Parliamentary Roundtable on Article 121 (1A) in Parliament (Committee Room 1) on Thursday, 5th January 2006, to explain whether as Attorney-General in 1988, he had intended the new Article 121 (1A) to undermine the social contract and the fundamental principles that the Constitution and Civil Courts are supreme and create injustices like the Moorthy case where his widow S. Kaliammal, 30, found that she had no remedy in any court when she sought a declaration that her late husband was a Hindu who had practised the Hindu way of life and that any papers relating to his alleged conversion to Islam were null and void.
The interpretation of Article 121(1A), which provides that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”, has greatly undermined the integrity of the family unit, inter-religious harmony and national unity, as it has created the following situations:
· The civil courts are reluctant to adjudicate cases where the Islamic ingredient is present notwithstanding the fact the person seeking judicial relief or remedy is a non-Muslim.
· While the civil courts are disinclined to protect non-Muslims the Syariah Courts are assuming jurisdiction and power to deal with the affairs of non-Muslims related to matrimony and children’s custody. In doing so, Islamic law is applied to the detriment of non-Muslim affairs.
· Numerous cases where exhumations have been carried out indiscriminately pursuant to orders granted by Syariah Courts in respect of graves in non-Muslim burial grounds.
· A minor child can be converted to Islam at the request of only one parent without notice to the other non-Muslim parent.
· A convert’s non-Muslim marriage can be dissolved by Syariah courts, again according to certain Islamic law enactments.
· The spouse, children and other non-Muslim beneficiaries under the Distribution Act cannot inherit property when that person dies nor can they benefit fully through a will.
If Abu Talib agrees that the intention of Article 121 (1A) - which he cannot shirk responsibility as he was Attorney-General at the time it was rushed through Parliament without proper debate and study by MPs and the nation - was not to create these injustices and strains and stresses on the family institution, national unity and inter-religious harmony, he has the unique opportunity now as Suhakam Chairman to propose a proper remedy.
In this connection, the statement by the Suhakam Commissioner N. Siva Subramaniam exhorting Moorthy’s family to cease legal action challenging the controversial Syariah court decision that the Mount Everest mountaineer had died a Muslim, as “Islam is the official religion and the highest authority is the Syariah Court”, has caused shock and consternation as well as provoking calls for his resignation.
Suhakam must deplore and dissociate itself from Siva’s statement in no uncertain terms.
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