Next Constitution Amendment Bill – introduce Article 121(1B) to restore non-Muslim rights

I have been informed that the Attorney-General’s Chambers have submitted to the Government a Constitution Amendment Bill, which is to be tabled to Parliament for passage next week or in the June/July meeting of Parliament from June 18 — July 10, 2007.

The next Constitution Amendment Bill should include a new amendment of Article 121(1B) to clearly restore to non-Muslim Malaysians the Merdeka “social contract” and their constitutional right not to be adversely affected by Syariah law and courts.

Last month, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) conducted a week-long special prayers to express their anxieties, concerns and fears over growing encroachments of religious freedoms and rights in plural Malaysia, although freedom of religion is entrenched in Article 11 of the Federal Constitution and the Constitution the supreme law of the land.

This is because the past two years have seen increasing incidence of disputes affecting the human, family, religious and citizenship rights of non-Muslim Malaysians, such as the Moorthy, Rayappan, Subashini, Marimuthu and Revathi cases.

The 1988 amendment of Article 121(1A) of the Federal Constitution was to provide to Muslims the constitutional protection for their rights to be adjudicated in syariah courts without detracting any rights from non-Muslims.

I have no doubt that if during the parliamentary debate in March 1988 on the Constitution Amendment Bill 1988 which enacted Article 121(1A), an MP had the foresight to ask whether the intention was to create injustices and family grief like the Moorthy, Rayappan and Subashini cases, or to erode and undermine the constitutional rights of non-Muslim Malaysians to seek legal redress in civil court rather than in syariah court, the answer would have been a clear “No” in both instances.

By enacting Article 121(1A), Parliament never intended to take away even one iota of the constitutional rights of non-Muslims to be fully adjudicated under civil law and not under syariah law.

Why then has the implementation of Article 121(1A) been allowed to create grave strain and stress to Malaysia’s plural society of diverse races and religions?

If there is uncertainty in the interpretation and implementation of Article 121(1A) as to create a situation never intended by Parliament, it is the duty of MPs to rectify it — in this case, by introducing a Article 121(1B) to make it clear that Article 121(1A) does not derogate from non-Muslim Malaysians any rights which they had enjoyed without challenge before the 1988 Constitution amendment.

When I raised this in Parliament last month, the Minister in the Prime Minister’s Department, Datuk Nazri Aziz said my arguments were valid but there was no way the Barisan Nasional government could agree because there was no way to convince and persuade Malays who constitute the majority of the electorate to support such a constitutional amendment.

Is this an acceptable reason why there should not be a new constitutional amendment of Article 121(1B) to explain clearly the implications of Article 121(1A) as affecting Muslims and not non-Muslims?

Can MCA, Gerakan, MIC and the other non-Muslim leaders in Barisan Nasional in Sabah and Sarawak accept such an argument?
The Prime Minister, Datuk Seri Abdullah Ahmad Badawi had asked MCA and Gerakan why there was a swing of Chinese voters to the Opposition in the Ijok by-election.

This is one example — that the Barisan Nasional government is indifferent to the increasing concerns, anxieties and fears of non-Muslim Malaysians about their religious rights and sensitivities as well as their human and family rights as illustrated by the Moorthy, Rayappan, Subashini, Marimuthu and Revathi cases and is not prepared to do what is right — by amending the Malaysian Constitution with a new Article 121(1B).

What we have is a sorry situation where MCA, Gerakan, MIC and the other non-Muslim leaders in Barisan Nasional know that a constitutional amendment in the form of Article 121(1B) is the proper and best solution to the problem, but they dare not stand up for what is right and good for the country whether in Cabinet or the Barisan Nasional Supreme Council.

How then are Malaysians to have confidence in MCA, Gerakan, MIC, SUPP, PBS, SAPP as well as Umno and Barisan Nasional leaders when they are not prepared to stand up for what is right and just by amending the Malaysian Constitution with a new Article 121(1B)?

I call on MCA, Gerakan, MIC and other non-Muslim Cabinet Ministers to ensure that the next Constitution Amendment Bill, when tabled in Parliament next week or next month, would also have a Article 121(1B) amendment.

  1. #1 by Jeffrey on Saturday, 5 May 2007 - 1:17 pm

    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.

  2. #2 by trashed on Saturday, 5 May 2007 - 1:39 pm

    As far as I recall, Malaya and then Malaysia, has followed a secular form of constitution. Has anything been re-written into the Consitution to make it an Islamic form ?

    For those who wish to have a more Islamic form of government or legal system, etc …. you are free to go to Saudi Arabia or Pakistan.

    What, no takers ????

  3. #3 by Godamn Singh on Saturday, 5 May 2007 - 8:26 pm

    I am on all fours with Jeffrey QC on this matter.

    There is nothing wrong with Art. 121(1A) as such. The problem is in its interpretation. Critics may still argue that if a piece of legislation could give rise to conflicting interpretation then is it not timely that it be sent back to the drawing board, to the draftsman to find if it could not be fine-tuned to give effect to the original intention of Parliament.

    The problem is with our judiciary, the third branch of our government. This third branch should not conduct itself as an arm of the executive, interpreting laws passed by the legislature, the nations highest law making body, according to the whims and fancies of the executive of the day. They are meant to be separate and independent branches of the government. The fact that the Westminster model of parliamentary involves overlapping powers does not mean that the judiciary should be subservient to the executive.

    Justices of the Court of Appeal and the Federal Court, the highest court of the land, should be unafraid to make decisions which go against the government of the day.

    Unfortunately, their decisions are strongly skewed one way and not the other i.e. towards protecting the government position and government interest. This is the natural consequence of sustained and prolonged executive interference in the workings of the judiciary over a long period of time. It is not an exaggeration to say that a culture of fear has long permeated our system of justice. It is time these justices of the Court of Appeal and the Federal Court show their independence from political interference.

    Sadly, the recent Bibi case has shown that political interference is still a threat to the independence of the judiciary. In the past it works to give effect to the demands of the executive. Today it may work to dilute the hold the executive has over the judiciary. It is still executive interference albeit under the guise of ‘plea bargain’.

    Another disturbing trend has emerged i.e. the beginning of the practice of a kind of an informal plea bargaining which is alien to the Westminster model of Parliamentary democracy – the constitutionality of which has always been in question.

  4. #4 by kurakura on Saturday, 5 May 2007 - 8:46 pm

    So what if the bill is passed?When those overzealous officers want to harrass you for bribes or just for pue hate, no bills can stop them. This is a lawless country.

  5. #5 by fighter on Saturday, 5 May 2007 - 11:06 pm

    I think YB’s proposal for Art.121(1B) is a very good one as Art.121(1A) has stripped off non-Muslims their basic human rights of legal redress.

    I am tired of hearing people saying that there is nothing wrong with Art. 121(1A) as it is merely a matter of interpretation.If High Court and Court of Appeal judges had interpreted that Art. against the interest of non-Muslims, surely this cause great concerns to the non-Muslims.If judges had misinterpreted and will continue to misinterpret, then surely, the Art.either be amended or like in this case a new Art. need to be added.

    Many people don’t recognise that 121(1A) has great impact on their lives until it affects them personally.As such I suggest DAP make this as a major issue to bring to home that unless the Art. be amended or a new Art. 121(1B) is added, then the non-Muslims are in grave danger of their human rights being taken away from them.

    Apart from the examples of Indians being affected as given by YB there were Chinese who were also affected e.g the Chinese fireman in Malacca whose family were shocked when his EPF monies and houses were seized by Islamic authorities on the ground that he had converted to Islam although this was strongly denied by his family. So 121(1A) is no longer theoretical nor affects only Indians but also Chinese.

    Unless something drastic is done and message is sent of the seriousness of the issue, the non-Muslims will live a life of fear that they will be next to be affected with their loved ones’ bodies and properties being taken and they be helpless as the Civil Court will not rescue them.

  6. #6 by DarkHorse on Saturday, 5 May 2007 - 11:27 pm

    What are you fighting about here?

    We need to determine if it is the legislation that is the problem. The legislation is passed by the highest legislature in the land i.e. Parliament whose members are elected representatives of the people. If that is their intent then that is the law.

    The problem is we are not sure if that is the original intent of Parliament. The role of the courts is to interpret the law to give meaning and purpose to the intent of Parliament. When intent is not clear the problem can only be resolved by repeal of the Act and replacing it with a new one.

    If it is a case of the court interpreting the law in a way that is not foreseeable and does so in a manner that is not consistent with the intent of Parliament, then the law is flawed and can only be corrected by Parliament from where the law originated by way of an amendment.

    If the problem is neither, then you can only solve it through the electoral process.

    So stop whining and deal with it!

  7. #7 by accountability on Monday, 7 May 2007 - 1:23 am

    malaysia has laws, but biased and selective enforcement.

    due to lack of transparency and accountability, overzealous misinterpretations are being tolerated and we are left with a rapidly decaying country

  8. #8 by good coolie on Monday, 7 May 2007 - 3:41 pm

    Let the Federal Court decide on Lina Joy’s case. I hope they do not decide on narrow issues but, rather, on wider and ultimately contested issues, the most important of these being the ambit of 121(1A). The Federal Court should rise to the ocassion and deliver its judgement quickly, as the country needs to move on these issues, maybe to the next stage – the political stage – if necessary).

  9. #9 by good coolie on Monday, 7 May 2007 - 3:51 pm

    The politicians blame the Judges
    And the Judges blame the politicians
    And Non-Muslims lose their rights.
    (I know this is a bad try at writing poems. However, though there is no rhyme, there is reason at least in my poem).

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