It was a time immediately following the Iranian revolution led by Ayatollah Khomieni. The winds of Islamic fundamentalism were blowing from West Asia, and TDM’s administration felt that policies of government of a muslim majority constituency should be in sync with majority’s aspirations, and like a palm tree, should bend before the hurricane winds or else break, as permanent structures not capable of bending would, before such a storm.

Hence Article 121(1A) was promulgated to resolve the conflicts between decisions of civil and Syariah courts and to make sure that Syariah principles were not subordinated to English Common law principles. (Strictly it is arguable whether such a constitutional amendment was necessary, and not superfluous, because Schedule 9 of our constitution is already clear that only Syariah courts have jurisdiction over people professing Islam, to the inevitable exclusion of Civil courts.

The crux of 121(1A) is to restate the obvious that the country has two streams of law – Shariah and Civil based on common laws – and the twain, running parallel is always separate, never intersect nor mix, as like oil and water.

The shortcoming of 121(1A) is that it is silent and make no provisions for situations of muslim converts reconverting out of the faith (eg Anthony Rayappan and Raimah Bibi Noordin cases) or a Muslim convert contesting his non muslim spouse over custody like case of Subashini a/p Rajasingham v Saravanan a/l Thangathoray.

In the latter case, the question of which law prevails in a conflict between the two streams of law immediately acquires an important symbolism of which of the two conflicting streams of law is dominant and more powerful as an equivalent measure of the dominance and power of the group subject to the law that will triumph!

To non muslims and the Malaysian Consultative Council for Buddhism, Christianity, Hinduism and Sikhism, the priorities are, first, non violation of non muslim’s rights and their right to avail relief from application of Shariah, second, the primacy of the secular principle underpinning the Federal Constitution and the importance of upholding the sanctity of it as the basic Social Contract at independence, no less important as Malays would want their special privileges upheld as part of it.

This position is supported by the Federal Court decision of Che Omar bin Che Soh vs Public Prosecutor (1988) in which Lord President Tun Salleh Abas held that the Constitution and the legal system were “secular” and that the meaning of the expression “Islam” or “Islamic religion” in Article 3 “means only such acts as relate to rituals and ceremonies”.

But as Undergrad2 said in his earlier posting May 4th at 7:08pm in the other blog thread Marimuthu/Raimah, Che Omar bin Che Soh vs Public Prosecutor (1988) was decided at the time well before “the waves of Islamic fundamentalism have reached Malaysian shores”.

Well over 20 years of proactive Islamisation of the country by TDM’s administration has changed the situation leaving many interest groups and people within the Islamic establishment desirous of converting this multicultural and multi religious country to a more pristine form of the ideal Islamic State in accord with their aspirations. For convenience, I would just tag these groups as the ‘Islamists’ who are found in various proportions in civil service, army, police force, judiciary, schools, tertiary educations – indeed every corner of society.

To the Islamists, the agenda of the Islamic state is better pursued not by immediately jettisoning the Federal constitution – at least not yet because, practically, there is still a significant 40% of Malaysians of other faith having a measure of political clout. The preferred way is to do it on the quiet, on the side lines, one facet of which is the empowering of moral police and vigilantes to enforce Shariah on muslims and, where opportunities present themselves, as in the case of the Local Park Act on decent behaviour, on non muslim courting couples as well.

It is trite that Islamists would want to defend tooth and nail to uphold Article 121(1A) for what it symbolizes – the supremacy of Shariah over secular common law, as a character of our Constitution, delivered on a plate to them by a spate of High Court decisions.

The courts have so far taken the subject-matter approach and avoid getting involved in anything that is remotely having anything to do with Shariah. In an entanglement between Muslim and non-Muslim rights and overlapping of 2 streams of law, they simply refused to adjudicate by using 121(1A) as an excuse to leave the jurisdiction to Shariah court, thereby leaving non Muslim litigants, not subject to Shariah, without legal remedy and redress.

Of course the government wants to resolve the problem of 121(1A) as interpreted by the spate of recent decisions. Minister in the Prime Minister’s Department Mohammad Radzi Sheikh Ahmad had confirmed that the government wished to find a “solution” to the question of “interpreting” Article 121 (1A) so as to preclude any “misunderstanding” – no good for harmony of a multiracial, multi religious and cultural society as ours but how?

No doubt 121(1A) is a man-crafted provision. Whilst it was not possible for the AG’s draftsmen, when drafting 121(1A), to foresee the manifold combinations of complications that might unfold in the future because of its wordings and interpretations, yet when problems as posed by Anthony Rayappan, Raimah Bibi Noordin Subashini a/p Rajasingham v Saravanan a/l Thangathoray cases arise, it is equally expedient for the AG Chambers to craft suitable amendment to 121(1A) to cure its ambiguities to resolve the problems of interpretations.

But by the way the 121(1a) problem has been publicly blown up, it has assumed a symbolism of Islamic power that cannot be amended or repealed without widespread opposition by Islamists who would accuse the UMNO led government of being more supportive of multiculturalism/secular law than Islamic values/Shariah.

It is trite that UMNO led BN will always prioritize the concerns of the Malay constituency (the bulwark of their political support) whose religio-cultural identity is Islamic. Hence Prime Minister Abdullah Ahmad Badawi made a stand that there would be no changes to 121(1A), and it was final.

No amendment to or repeal of 121(1A) means that those sympathetic to Non Muslims’ plight will have to depend on future judicial interpretation by our appellate courts to ameliorate that plight.

This course pins the hopes on the judges at appellate level – that they would be bold enough to resist Islamists’ pressures and do right by reclaiming their judicial power to adjudicate cases in which one of the parties is a non muslims subject to civil laws.

Will this happen in the near future? No want can be sure. No one can guarantee it. But it is possible considering that the government has already given the cue that it desires this problem solved. But it can’t be for so long as litigants like Raimah Bibi a/p Noordin settle the matter with JAIS out of court (even though I don’t blame her as she placed the interest of her children first).

But judicial interpretation is likely the only way given the limiting factors outlined above.

I see a lot of cleverness in YB Kit’s suggestion of a new constitutional amendment by Article 121(1B) to basically say those things which 121(1A) fails to say, and hence read in combination solve the plight of Non Muslims and yet at the same time purport to ruffle no feathers of the Islamists by saying to them, “if you think 121(1A) is sacrosanct and inviolate, see, there is neither repeal or amendment to 121(1A), so you keep 121(1A) but we get 121(1B), as compromise. Pak Lah too need not back peddle; there’s a way out for him too. When he took the stand that there would be no changes to 121(1A), and that was final, it didn’t mean that he could not introduce 121(1B), to amplify expand and clarify 121(1A) – in the process to strengthen 121(1A) to the satisfaction of Islamists but yet not relegating Non Muslim’s legitimate interest to oblivion.

But clever as this solution sounds, with respect, I don’t think it works. It is merely procedurally doing something indirectly [backdoor amendment to 121(1A) by 121(1B)] which a more direct amendment of 121(1A) has not been possible because of Islamists’ resistance. It is substance over procedure that I am sure Islamists will view the issue.

At the end of the day, the solution still lies in judicial interpretation of the existing Article 121(1A) and we hope that with the imminence of the General Election, the government will take a more multicultural approach and that our judges will be bold to do right and fair according to law and equity and not any partisan religious sentiments.