I’m not too sure MCCBCHST’s initiative to hold a prayer for the government to be moved by ‘moral conscience’ is such a good idea. For one thing, if our government may be moved by ‘moral conscience’ we won’t have the problems that the country and minorities are presently facing, will we? If the government premised on Malay Muslim dominance would not bow to 10 non-Muslim Ministers within its old fold in January last year on the issue of Article 121(1)A, what are the chances that it will relent to pressure from non malay/muslim pressure group like MCCBCHST, no matter couched under the pretext of prayers? The problems created by Court of appeal’s decision on R. Subashini v T. Saravanan and earlier spate of judicial decisions like, for examples Rayappan’s and M Moorthy’s involving Article 121(1)A and Article 11 of the Federal Constitution are best resolved by reasons based on appeal on secular non religious legal and constitutional reasons and not appeal to “divine help” . MCCBCHST said that the prayer sessions by over this week will coincide with the Christian Holy Week, the Hindu and Tamil New Year, and Cheng Beng (Chinese’s All Souls Day) implying what is desperately sought is not just ‘divine help’ but help from the departed souls from the nether regions as well! Precisely because we’re multi-religious society, we require secular criteria to be arbiter. Otherwise you may ask what happens, if in response to MCCBCHST’s initiative, devout muslims also congregate to pray nationwide for the decision of R. Subashini v T. Saravanan, Anthony Rayappan’s and M Moorthy’s to stand! Do you think the government would like to be seen going against malay/muslims’ interest and agenda? So lets keep religion out of the equation.

I think it is unrealistic to think there is any political will to repeal or amend Article 121(1)A and revert to the position prior to the 1988 constitutional amendment introducing Article 121(1)A.

Article 121(1A), in a nutshell, states that the civil High Courts have no jurisdiction in matters within the Syariah courts’ jurisdiction.

One can look at Article 121(1A) as being nothing wrong except that it has, so far, been misinterpreted by the Court of Appeal that theoretically the Federal Court can reverse.

[The problem would appear to lie in getting judges who are more objective and not swayed by emotions. On 1st page of The Sun March 29th, Minister in Prime Minister’s Department, Tan Sri Bernard Dompok was reported to have made a general statement ‘without referring to specific cases’ that some judges had allowed their “personal sentiment” to cloud their judgment, when asked to comment on the Court of Appeal’s rejection by 2-1 majority of Subashini’s application. Perhaps the solution, in longer term, lies in having the Judicial Commission to help the process of judges’ appointment].

If and when the Federal Court is called upon to make a judicial determination on this important article – 121(1)A, its implications and ramifications – which it will do so after a measure of prevailing public opinion, mood and of course the political nuances, then only will the Non Muslim position be stamped with legal finality for us to know where we stand in relation to our constitutional rights, and whether there is justice, and logic, from Malaysian apex courts .

The Federal Court will have to look at the issues objectively from several angles.

Firstly, if Article 121(1A) was intended to separate and avoid the confusion of mixing the two streams of law – Syariah applicable to Muslims from secular civil law applicable to non Muslims and states that the Civil High Courts have no jurisdiction in matters within the Syariah courts’ jurisdiction, then the converse is equally tenable that Syariah courts have no jurisdiction in matters within the Civil High Courts’ jurisdiction and over non muslims. [Our Federal Constitution clearly limits the jurisdiction of the Syariah Court to “persons professing the religion of Islam” – see Sch. 9, List 2 (1), Federal Constitution].

This much is clear.

The problem however arises in conversion cases in which one side wants the application of Syariah law to the convert and the other the civil law for the non muslim, to which the issue becomes at once clouded when lobby groups come to the scene to press for supremacy of their preferred system of law in a perceived conflict situation.

The fact is Article 121(A)(1) merely demarcates the two systems of laws without touching on the sensitive issue of which is paramount in a conflict between them.

My personal view is that in an unavoidable conflict, the Federal Constitution has to be the supreme basic law that prevails in a conflict and since the Federal Constitution is secular – though there may be some who argue otherwise – then Civil law will logically have to prevail in such a conflict.

The other fact is that we do not really have to be brought to this point to decide and say the obvious as to which stream of law, in an unavoidable conflict, is more supreme (since this touches on religious sensitivities and we Malaysians are supposed to be mindful of each others sensitivities).

There is an earlier question: is there really a conflict?

There was no conflict in Anthony Rayappan’s case; his body was returned to his wife and family for Christian burial when the Selangor Islamic Religious Council (MAIS) withdrew its claim over his body for Muslim burial in the wake of the position taken by the PM/cabinet (extra- judicially) that Rayappan had gone back to his original faith as a Catholic, and as such should be allowed to remain a Christian on death.

We cannot say that the government and the cabinet are not sympathetic to see justice done but apparently for political reasons it can’t mitigate the rucks in the misadministration of justice if the issue is politicized!

Take the other latest case of R. Subashini v T. Saravanan that generated the latest furor requiring MCCBCHST’s prayers for divine intervention.

Is there really a conflict of two separate streams of laws?
Subshini, 28, a secretary and Ti Saravanan, 30, a businessman were married in 2001 under civil law – Law Reform (Marriage & Divorce) Act 1976 – and have two sons, aged 1 and 3. The husband, now Muhammad Shafi Saravanan Abdullah, embraced Islam in May 2006. He has sought to dissolve his civil marriage at the Syariah Court. He has also sought to obtain custody of their 3-year old son whom he claims also converted to Islam. Subshini resists his intentions. The Court of Appeal decided 2-1 majority (with Justice Gopal Sri Ram dissenting) in favour of the estranged husband, and the wife now appeals against that.

In his judgement, Majority Justice Suriyadi Halim Omar said it “made no sense” for Subshini to argue that the syariah court was only for Muslims according to the constitution. In a dissenting minority decision, Justice Gopal Sri Ram said the Shariah court only had jurisdiction where all parties were Muslim.

Justice Gopal Sri Ram is right – if one implicitly assumes, as I said, that the Constitution is supreme and secular and should prevail but this is unacceptable to some quarters pushing the agenda the opposite way. They would say why should a Muslim, albeit convert, like now Muhammad Shafi Saravanan Abdullah, be made to subject to Civil law when he had already converted and his muslim status unlike Anthony Rayappan is not in doubt? To make him so subject (due to a conflict of laws) is to imply the inferior status of Syariah as compared to a civil law like Law Reform (Marriage & Divorce) Act 1976. This is unacceptable especially when nowhere in Federal Constitution is it expressly stated that in a conflict, Syariah Law is the inferior of the two. This does not make sense because the laws of the Almighty cannot be inferior to man made civil laws. This is the thrust of the contention.

Now the whole question of which law is superior or inferior really does not arise because logic dictates that the main question is by which law the parties Subshini and Saravanan first contracted and structured their marital and familial relationship.

If it was Syariah law then it is that all the way; if it was the Law Reform (Marriage & Divorce) Act 1976 (as is the case) then it would be civil law all the way. It is not because civil law is superior to syariah law – that is something that need not be determined for purposes of deciding this case – it is because: a party having entered into certain arrangements like marriage under civil law should not be allowed to circumvent, renege on and evade their solemn legal commitments and obligations in a manner that seriously prejudices the other party that has relied on these commitments and obligations originally undertaken to structure their relations and lives together by the simple expedience of changing midstream, the very stream of law that alters these commitments and obligations.

One cannot stop a man from converting, it is his right but one should be able to stop him from converting the children in whom both have legitimate joint interest in the premises of civil law upon which the union was first sanctified. How could any non-Muslim woman feel secure in marrying and having children with another non muslim husband Law under the monogamous regime of the Reform (Marriage & Divorce) Act 1976 when her husband could potentially threaten to convert and thus take another take her children away? It does not take a rocket scientist to know that this is unjust and lead to anomalous results.

To allow such a thing to happen is an invitation to chaos and defeat the very purpose of law itself, never mind whether it is civil law or even syariah. Just imagine 2 muslims marry under syariah law and midstream, the wife becomes an apostate and wants to influence the children to be apostate like her or be subject to Law Reform (Marriage & Divorce) Act 1976 to stop the husband from taking another wife that syariah permits. Does this make sense – can this be allowed?

Our Federal Court should take heed that this has nothing to do with the sensitive issue of which system of law – civil or syariah – is superior : just which system of law was the first upon which mutual commitments and obligations were sanctioned and sealed on which a party is entitled to rely as frame of reference without a unilateral change of the entire regime of law by the other party to the first party’s extreme prejudice.

“The Federal Constitution of 1957 is not secular. Why is it not secular? Because it says the religion of the federation is Islam – to begin with” – Diaperhead.

Well the Federal Constitution is not 100% like that of the secular constitution of the US, that is admitted, but having said that, it is a kind of hybrid where the preponderance of the overall character of the constitution is secular.

That Islam is religion of the federation is a reference to it being the official religion for ceremonial and official purposes but this does not change the overall character of the secular substance of the constitution because non muslims are not compelled to embrace Islam and are free to practise their religions, the powers to legislate on syariah are confined to state legislative assemblies on matters referred to in 9th Schedule of the Constitution and 9th Schedule of the Federal Constitution confines the jurisdiction of the syariah courts to ‘only over persons professing the religion of Islam (with our criminal law based on English law applicable for even Muslims instead of hudud) and the pronouncement of former Lord President, Tun Salleh Abbas in the case of Che Omar Che Soh [in 1988] in which he categorically said that this is a secular state, a position uncontradicted even until today by our courts.

“…//…Only for ceremonial and official purposes?? The Constitution does not say that??…//..”

Well it was not said by me either. It was said by a five-man Federal Court judgment led by then Lord President Tun Salleh Abas in case of Che Omar bin Che Soh vs Public Prosecutor (1988). It was said by the Reid Commission that drafted our Contitution.

It was said by YB LKS about what Reid Commission & Tun Salleh Abas said in this his Homepage link – http://www.limkitsiang.com/archive/2001/oct01/lks1199.htm

LKS said: (and I quote) : “That the independent nation formed on August 31, 1957 was established as a secular nation was specifically stated in the White Paper on the Reid Constitution Commission Report presented by the Alliance Government headed by Tunku, which stated:

‘57. There has been included in the proposed Federal Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practise his own religion and the right to propagate his religion, though this last right is subject to restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.’

On the fundamental constitutional principle that Malaysia is a secular nation being upheld by the highest court in the land in Che Omar bin Che Soh vs Public Prosecutor (1988), YB LKS further said : “Delivering the judgment of a five-man Federal Court panel, the then Lord President Tun Salleh Abas held that the Constitution and the legal system are “secular” and held that the meaning of the expression “Islam” or “Islamic religion” in Article 3 “means only such acts as relate to rituals and ceremonies”. Tun Salleh Abas further said ‘there can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial’ but rejected the contention that the terms “Islam” or “Islamic religion” in Article 3 is “an all-embracing concept, as is normally understood, which consists not only the ritualistic aspect but also a comprehensive system of life, including its jurisprudence and moral standard” as this was not the meaning intended by the framers of the Constitution”.

Breaking News reported on page 7 of The Sun, April 4th : “Mohd Shafi Abdullah, the husband of R. Subashini, has lodged a report against the Bar Council, non-governmental organisations, non-muslim religious bodies, politicians and a few individuals for allegedly making prejudicial allegations and contemptuous comments against March 13 Court of Appeal decision. He said among allegations against him was that he has embraced Islam to shirk his responsibilities under civil laws, and that the March 13 decision was unfair. He said he was making the report to protect his interests and that of his case, which is pending in court…A press statement read out by his lawyer Zainul Rijal Abu Bakar said: ‘ All parties should realise that this case is still in dispute and Subashini has made an application for appeal in theFederal Court. Therefore, it is important to all parties to not air any comments on the case to avoid prejudice against Shafi case in court. This is subjudice.”

Sub judice, an archaic concept according to Undergrad2 is to avert the danger of prejudice to court proceedings especially where there is trial by jury affecting a criminal case. We’re talking of the Federal Court here in respect to which the risk of influence by public or parliamentary debate on the judges in the formation of their judgments is less.

The prime question to be asked is : Is public debate likely to give rise to any real and substantial danger of prejudice to proceedings before the court? This has to be weighed against the other fact that the Court of Appeal’s decision on Subashini v T. Saravanan is unquestionably one of profound public interest relating to the Federal Constitution and its interpretation as it affects the rights of muslims/non muslims.

Society does not operate on one principle – subjudice and the desirability of making sure that a Court and its impartiality of judgment will not be influenced by public debate as to affect in prejudicial way, the rights of one of the parties. Society operates on the basis of a multiple of desirable if competing principles – like the Freedom of Speech in Article 5 of the Constitution, and the interpretation of the Constitution itself – which it has to weigh, balance, juggle and eventually prioritize.

Here a report has been made against the Bar Council, non-governmental organisations, non-muslim religious bodies, politicians and a few individuals for taking up and debating an issue of great constitutional importance to public interest.

Whence does individual interest arguing on subjudice override public interest? It is ironical that ‘subjudice’ being a civil law concept is now raised by the very party to a suit that seeks to exclude application of civil law in preference to syariah law.

Well, the Association of Malaysian lawyers, the Bar Council, have come out with a statement that public comments about the R. Subashini case, which is pending in the Federal Court, are not sub judice.

“This fear is unfounded, and the argument is without basis,” its chairwoman, Ambiga Sreenevasan, said in the statement.

She further said “The law of contempt and sub judice in this context is applicable mainly in relation to a jury or where there are vulnerable witnesses who may be influenced by public comments. It certainly does not apply to judges and especially, as in this case, the Federal Court judges who will consider points of law on the materials before them, uninfluenced by extraneous matters and comments in the public domain.”

She added that public comments on matters of public interest, particularly where it involves constitutional guarantees, cannot be sub judice or contempt.
See this link in Sun2Surf – http://www.sun2surf.com/article.cfm?id=17509

On the Federal Constitution being “secular” or otherwise, Undergrad2 said, “ at best, I respectfully submit, it is a hybrid. If it is secular why then do we find numerous references to the Muslim religion. Why is Islam the official religion of the federation created by the Constitution?”

Fair enough, but you must remember the law of the land that has not yet been contradicted as laid down by the then Lord President Tun Salleh Abas in case of Che Omar bin Che Soh vs Public Prosecutor (1988).

Delivering the judgment of a five-man Federal Court panel, the then Lord President Tun Salleh Abas held that the Constitution and the legal system were “secular” and held that the meaning of the expression “Islam” or “Islamic religion” in Article 3 “means only such acts as relate to rituals and ceremonies”. Tun Salleh Abas further said ‘there can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial’ but rejected the contention that the terms “Islam” or “Islamic religion” in Article 3 is “an all-embracing concept, as is normally understood, which consists not only the ritualistic aspect but also a comprehensive system of life, including its jurisprudence and moral standard” as this was not the meaning intended by the framers of the Constitution” (Reid Commission).

On Raimah Bibi Noordin’s status, “She was raised by Muslim parents but may or may not have been a practicing Muslim. That does not change her status as a Muslim by law” – Undergrad2.

Arguably it does – based on the way one conducts one’s life and practised beliefs, at least that’s what MAIS after consultation with JAIS and other legal advisers, said, after dropping its claim to Anthony Rayappan’s body : MAIS Chairman Datuk Mohamed Adzib Mohd Isa told the Bernama news agency that ‘although information gathered earlier had indicated that Rayappan was a Muslim, more recent evidence for his Christian beliefs was overwhelming.’

In that case Anthony had already converted to Muslim in 1990 (by reason of earlier marriage to a Muslim women) but he never shown by his way of life that he was a practising Muslim. In fact he was a practising Christian just as Raimah Bibi Noordin was a practicing Hindu whose marriage to Marimuthu Periasamy was conducted in Hindu rites.

The only difference between Anthony Rayappan and Raimah Bibi Noordin is that in former’s case Anthony had procured change of his IC to “Christianity” – in Raimah Bibi Noordin, her old IC was all along “Hindu” until a change to Mykad when they changed it back to “Muslim” that she didn’t bother to rectify.

The original status appears not to matter – in the case where one is not born into the faith, as Malays – like for example Anthony Rayappan, a Muslim since 1990 conversion or Raimah Bibi Noordin by virtue of being raised in or adopted by a Muslim Convert family. Neither is it based on what the IC says.

In the case of Nyonya Tahir, who died on January 19, the Seremban Sharia Court acknowledged that she was a non-Muslim at the time of her death and allowed her family to bury her as one, even though her identity card explicitly stated she was a Muslim !

Bottomline is how one conducts one’s life and professes belief to family members and immediate society that should be the determining factor (according to what MAIS Chairman Datuk Mohamed Adzib Mohd Isa seemed to say).

Based on this criteria, there is a genuine point of contention in Raimah Bibi Noordin whether she has long practised as a Hindu and should be considered a Hindu. (Her adopted Muslim convert family gave blessing to her marrying Marimuthu via Hindu rites. She had since lived together with Marimuthu for 21 years and raised their children as Hindus).

How could JAIS be sole arbiter and judge that she according to Datuk Mohamed Adzib Mohd’s criteria has not become a Hindu ?