Former Attorney-General Abu Talib Othman must have felt like facing the firing squad when bombarded with questions over constitutional amendments 18 years ago which is said to have contributed to deteriorating race relations in the country now.

Participants attending a DAP-organised parliamentary roundtable on Article 121 (1A) today wanted him to explain and provide solutions on how to undo the damage caused by the amendments passed in 1988.

As a result, the civil courts have time and again rejected a non-Muslim plaintiff's right to legal redress on jurisdictional grounds if the matter fell within the syariah system.

However, Abu Talib pinned the blame on the judiciary for lacking the courage to interpret the provisions according to the intentions of the proponents.

As the drafter in 1988, he said the amendments were never intended to deny or deprive non-Muslims the right to seek justice in a civil court.

"Personally, I see no problem in applying the provision. If only the courts had the courage to act further independently of the Executive," he said, citing promotional prospects as a possible reason holding judges back.

"The courts have failed to do so (interpret boldly) for the slightest unreasonable reasons in many cases where Islam is merely seen on the surface," he added.

Conflict resolution

Abu Talib who is now Human Rights Commission of Malaysia (Suhakam) chairperson explained that the amendments were brought following conflicting decisions between civil and syariah courts.

"We felt that a syariah court was more competent to hear religious cases, especially when Schedule IX of the Federal Constitution clearly says that syariah laws only apply to Muslims.

"If the plaintiff is not a Muslim, I cannot imagine why the (civil) court can say 'I don't have jurisdiction'. If the plaintiff does not profess Islam, there is no reason not to hear the case."

He maintained that Article 121 (1A) did not take away the rights of non-Muslims and accused the courts of not interpreting it correctly.

He argued that even if syariah laws are amended, the constitutionality of the provisions could be challenged in the civil courts which is a court of competent jurisdiction for this matter.

"The problem here is caused by the court, not by the legislature. Judges are not complying with the constitutional oath they had taken. The courts today are taking the easy way out, either due to incompetence or under threat. Today, our courts are merely courts of statistics not interested in dispensing justice.

"With sentiments running so high, similar developments could lead to riots," he noted.

Abu Talib suggested either an amendment to the constitution or the Courts of Judicature Act to compel judges to hear cases regardless of the subject matter.

Among the 11 panellists were former AG and Human Rights Commission of Malaysia chairperson Abu Talib Othman, DAP leader Lim Kit Siang, Kota Baru MP and lawyer Zaid Ibrahim, human rights lawyer Malik Imtiaz and Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS) representatives.

Judicial oath

Responding to a comment by Malik (right) earlier about judges who admit to being Muslims first, Abu Talib said the matter should be reported and those judges removed if there was evidence.

"They are unfit to be judges, then. Judges should remember their constitutional oath to protect and uphold the Federal Constitution as the supreme law of the land."

Malik, who is Malaysian Human Rights Society deputy president, said M Moorthy's case was not unique and only adds to the growing list of religiously contentious cases.

"It is a daily occurrence which does not make the mainstream media or is given minimal coverage and relegated to the inside pages of newspapers.

"An element of 'morality' has seeped into judicial considerations in the absence of written law," he said, noting the current trend of the civil courts in rejecting cases where the subject matter is vaguely Islamic.

He believes that at the crux of the debate lay the battle between constitutional supremacy and parliamentary sovereignty.

"The insertion of sub-article (1A) has introduced parliamentary sovereignty," he said.

The latter, Malik said, is the British system which has no written laws but the Malaysian system is based on written laws in the form of the Federal Constitution as the supreme law.

He said Article 121 (1A) has limited civil jurisdiction to federal laws whereas syariah laws come under state jurisdiction, hence the reluctance to hear Islam-related cases.

The roundtable was chaired by Ipoh Barat MP M Kula Segaran. Also present were several DAP MPs, lawyers, social and human rights activists and concerned individuals.

Flare-ups and warnings

Several times during the three-hour session tempers flared and emotions ran high.

One flare-up occurred after Prim pro-tem president P Uthayakumar finished questioning the advance presence of a mob at the mortuary when Moorthy's body was claimed by religious authorities.

He had touched on various racial and religious injustices documented over the years and concluded with an assertion that Hindu temples were being demolished on a regular basis.

Abu Talib, appearing restless, could be heard away from the microphone telling Kula to limit questions and comments to only Article 121 (1A).

Seated by then, Uthayakumar retorted by saying "Freedom of speech, Tan Sri", to which the human rights commissioner curtly asked "What is your agenda?"

Similarly, another participant who identified himself as Thiagu started commenting on Moorthy's case by saying that he has lost all faith in the government and the armed forces.

"What assurances do we non-Muslims have that the army does not go around converting our children by force. We know it is happening now," he said, adding that parents were now fearful of similar conversions during the national service programme.

Claiming to represent over 20 Indian-based non-governmental organisations, he voiced out the Indian community's concerns insisting that such unfair situations were pushing them to the wall.

"There is a limit to injustices. Better not push us any further. Get off your high horses, trash the bureaucracy and see what is happening on the ground," he said evoking loud cheers from the floor.

"We have not acted on our own yet but enough is enough. This is not a threat... merely a warning to be careful in the future. We are also citizens of Malaysia."

During the panel presentation, Kota Baru MP and lawyer Zaid Ibrahim's call for Article 121 (1A) to be repealed earned him earnest applause and murmurs of agreement.

He said that since the reality in Malaysia was to live with two sets of laws, he was only questioning an unfair law regardless of its origin, and not Islam itself.

"Previously, (in such cases, civil court) judges made pronouncements after calling for expert opinions. They did not make pronouncements on Islamic law.

"As a Muslim, I'd feel assured if there is another set of judicial authority which can see whether there is compliance of constitutional rights."

He said judges should exercise the residual constitutional powers which they have as it was meant to be used in situations of legal conflicts such as in Moorthy's and other cases.