The conversion of former army commando M Moorthy to Islam has shown up the continuance of the judicial crisis and has proven to be another blot on the notion of justice in Malaysia.

The high court once again took the narrow approach over its role and invoked Article 121 (1A) of the Federal Constitution, which states all matters pertaining to Islam should be handled by the Syariah Court. This has trodden on the rights of a non-Muslim.

The court's decision is seen as pushing the matter back to the Parliament to amend the Article and set a standard for the administration of justice. The judgment is clearly a development that is inconsistent with the aspirations and the dynamics of a multi-racial and multi-religious Malaysian society.

This is a serious threat to the notion of justice for all - an integral element in a democracy. Legal systems all over the world are bound by a fundamental right to access to justice. The decision in Moorthy's case was a blow for the administration of justice in Malaysia.

The courts are the place where disputes between parties over rights or responsibilities can be resolved impartially in order to protect individual rights guaranteed by the constitution, within the bounds of justice.

The sole purpose behind the creation of courts is to provide justice with due process and fairness for all regardless of race, gender, religion or political belief. The courts are places that are independent from undue influence, and which are trustworthy and have authority over all the parties in resolving disputes peacefully.

Access to justice

In the Moorthy case, the court tied itself down. The narrow view taken and the justification of Article 121A(1A) has apparently left the non-Muslim litigant with no legal remedy in disputes pertaining to issues involving Islam.

Civil courts are bound by Article 121A(1A), while the jurisdiction of Syariah courts is limited to Muslims in a dispute that effects the rights of a non-Muslim.

The issue in the Moorthy case is one of access to justice and a legal recourse over a dispute having been denied by a democratic system The Court of Appeal, in the case of Sugumar Balakrishnan v Director of Immigration, Sabah recognised the importance of the principle of access to justice and held this to be a constitutional right.

The court took the opinion that the right of a litigant to seek redress is part of his or her personal liberty within Article 5(1) and hence a fundamental liberty. This position enables legal disputes, conflicts and complaints to be resolved in an orderly way according to the justice of the case, so as to promote harmony and peace in society.

In the Moorthy case, it is important to note that the Syariah system is a system created by humans and one that is bound by procedures and guidelines in order to preserve fairness and equal participation.

The case was merely a dispute that challenged the credibility of information stating that Moorthy had converted to Islam. This is a matter that is governed by strict procedures and which had to be determined for credibility.

Moorthy's family-members had valid arguments to substantiate their doubt since they had not been informed about the conversion and he continued to live as a Hindu until the time of his death in December 2005.

It was therefore vital for all doubts to be clarified with due process before the religious affairs departments could claim the body for burial according to Muslim rites.

This is over and above the fact that the right of family-members to conduct the funeral is also at stake. If non-Muslim family members do not have a right to have the matter adjudicated in a Syariah court, then a civil court should be the forum for providing justice.

Suhakam's role

In the wake of the Moorthy case, the outcome has naturally affected the emotions of two racial groups. What is surprising is that no group or organisation took a mediatory role in the matter, to address the concerns of all parties.

It is also disturbing is that the Human Rights Commission of Malaysia (Suhakam) has turned a blind eye to the issue even after a recent meeting between its chairperson Abu Talib Othman and a delegation from inter-faith group Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS). The group had submitted recommendations based on Article121A(1A) and rights of non-Muslims.

A Suhakam commissioner's response was unbecoming of a human rights defender. The advice was for Moorthy's family to end legal action against the controversial Syariah Court decision. This goes against the principles of human rights and spirit of the preamble in the Suhakam Act 1999.

The commission invoked the narrow interpretation of the rule of subjudice. In doing so, it acted as a Federal Court judge to state that Islam is the official religion of the country and that the highest authority is the Syariah Court.

Suhakam should have studied the matter before invoking subjudice since the crux of the matter is about the right to access justice and the establishment of the justice system in Malaysia. Suhakam went against its very function as a body established to protect the rights of the people, while failing to act as a mediator in a crisis that required such intervention.

Section 4 of the Suhakam Act says the commission should promote awareness of human rights. Instead, it contributed to the whole unfounded notion of religious sensitivity.

Political will

Following the high court's decision, it is now left to Parliament to rectify an undemocratic position. The MCCBCHS has appealed to the executive to rectify the stance of Article 121A91A).

Will Prime Minister Abdullah Ahmad Badawi heed the voice of the minorities, even given the Barisan Nasional's (BN) historical mandate from citizens of all faiths? Or will the issue be swept under the carpet as another matter that is sensitive or a threat to national security, for fear of the political mileage that opposition part PAS may gain?

The reality is that the government is trapped within its politics of race and religion, especially now that PAS has taken a strong interest in the Moorthy case.

On Dec 29, 2005, the Tranung Kite website posted a statement attributed to PAS Youth chief Salahuddin Yaakob:

Kes ini merupakan kes besar melibatkan kedaulatan Islam. Andainya Mahkamah Tinggi Sivil berpihak kepada keluarga Mohamad maka sudah tentu ianya menunjukkan bahawa Undang-undang Syariah di negara adalah rapuh dan tidak berdaulat.

Sebelum ini pun kita berasa sedih kerana orang-orang kafir berani mencabar keputusan Mahkamah Syariah, di mana sepatutnya apa juga keputusan Mahkamah Syariah tidak boleh di cabar oleh Mahkamah Sivil. Keputusan Mahkamah Tinggi yang bersetuju untuk membicarakan kes ini juga dilihat sudah mencabar kewibawaan undang-undang negara kita.

On Dec 30, 2005, Harakahdaily published a statement by PAS central committee member Mahfuz Omar. In it, he urged the Rulers Council to intervene in the case, in order to protect the dignity of Islam in Malaysia and echoed Salahuddin's views.

PAS has taken the position of defending Article 121A(1A) with its rhetoric and has sown the seeds of a seeming threat to the position of Islam. It has ignored the fundamental issue of access to justice for non-Muslims.

It is therefore safe to assume that the whole argument of a new progressive PAS is far from true as its position would act as a denying force for required reforms. It is a situation in which Umno and BN would fear to act

Will Umno and BN have the political will to release itself from the shackles of religious politics and attend to the crucial reform needed?

PM's call

Does Abdullah, who is lauded for his religious credentials, have the will to rectify this? The premier's record of reform is stagnant, going by his lack of action over recommendations to improve the management and operations of the police force.

It is time for him to walk the talk, institute reforms and give effect to the core principles of Islam Hadhari that specifically mentions the protection of the rights of minority groups. He must take note that access to justice is a fundamental human right and recognise the fact that the courts play a vital role in the minority community's journey from second-class citizenship to equal protection under the law.

Among the basic human rights that any democratic government must protect are freedom of speech and expression; freedom of religion and belief; due process, equal protection under the law and access to the justice system.

Abdullah should be reminded that majority rule and his political mandate are the result of decisions made upon public issues and not mere religious or racial sentiments. Although the issue at hand is something that affects the minority groups, the government should rectify the situation and make Malaysia a model Islamic country that is moderate, just and peaceful.

The case of Moorthy is not an issue that threatens the constitutional position of Islam but of access to justice and serious shortcomings in the administration of justice.

Its would be an affront to justice if minority groups are denied such rights because the fundamental essence of justice is due process. Fairness is a vital element in lending credibility to judicial decisions and creating confidence in the courts.

The issue here is about justice for all - something that all religions emphasise.

K SHAN is a human rights activist attached to various organisations working with refugees.