Two words was all it took

At the Jan 5 DAP arranged roundtable discussion on Article121 (1A), Abu Talib Othman, chairperson of Suhakam, said to the effect that Art 121 (1A) represented the will of the majority and that is how democracy is. I was surprised that the statement was not qualified in any way by the speaker, who, after all, heads the Malaysian Human Rights Commission (Suhakam) for a second term.

I was not informed that the Jan 5 discussion was on Art 121 (1A). I was invited to discuss "the Moorthy case" over telephone. If I am not mistaken, there were seven lawyers on the panel, including the Leader of the Opposition, Lim Kit Siang. I thought that there was a deluge of lawyers.

I am of the view that we have Part II of the Federal Constitution on fundamental liberties and this is precisely set in place to check the excesses of majority will and rule. I said something about human rights being made available to protect the marginalised and minority groups. Abu Talib may have given some thought to that because he was quoted on Jan 23 as saying that Suhakam will look at Art 121 (1A) from a "human rights perspective first".

Suhakam did not make clear the 'hows' to that as it needs "to further study the parliamentary Hansard". Surely Abu Talib could have briefed them. He was the Attorney-General in 1988. For all intents and purposes, he acted on the instructions of the executive headed by Dr Mahathir Mohamed, drafted the constitutional amendments and provided the explanation to the constitutional amendment bill. The amendment changed Art 121 and included Art 121 (1A).

The amendments went through Parliament like a breeze because whatever little constitutional safeguards we have on the passing of laws by Parliament have been whittled over the years.

As Abu Talib had a prior lunch engagement with visitors to Suhakam that day, questions addressed to him were taken first. I thought one senior lawyer raised an important question which Abu Talib did not reply. He responded to another part to the question, then rushed off to his appointment taking almost all the reporters with him.

The question was why "judicial power" was taken out of Art. 121 in 1988. I thought that was a very critical question especially after Abu Talib lambasted judges for not interpreting Art 121 (1A) "boldly" and if "only the courts had the courage to act further independently of the executive".

Assault on judiciary

Anybody with a memory of 1988 and the judiciary will remember that the removal of the words "judicial power" to Art. 121 in fact, castrated the federal judiciary. The late Tun Suffian,
former Lord President, said in 2000 that it might take two generations before the judiciary recovers from this assault from the executive. One generation has passed and the late Tun was unsure if he might live to see the day of recovery.

He spoke on the occasion of the passing of one of the "hung judges", Wan Suleiman Pawanteh. The memorial could not held at the High Court and was held at the Malaysian Bar Auditorium.
There was no word from the Chief Justice on having the memorial in open court as was the tradition. That omission proved a sad day for the judiciary and lawyers.

Rather than contrition on Abu Talib's part, I think he was trying to evade queries on his role in the 1988 saga of the assault on the judiciary. He still owes the Malaysian public an explanation.

The deletion of "judicial power" is a challenge to the Merdeka Constitution. The 1957 Constitution vests legislative power in Parliament and executive power in the prime minister and his cabinet. In the federal scheme, judicial power is vested in the two High Courts, one in the States of Malaya and the other in Sabah and Sarawak. They are courts of coordinate jurisdiction
(equal power).

The 2000 report, Justice in jeopardy, recommended inter alia that the executive recognise that the root causes of the problem (putting justice in jeopardy), "were and continue to be, namely, a blatant assault upon the judiciary by the executive in 1987-88". It called for an independent Judicial Services Commission to recommend judicial appointments.

PAS did not take to the streets then in1988, as it did last Friday when clamouring that the nine ministers were challenging the federal constitution with the memorandum to the prime minister. We are talking about a major constitutional change to the basic structure of the Federal Constitution then. I am disappointed with Hatta Ramli of PAS. He should have should exhibited better statesmanship if he and PAS desire to govern multicultural Malaysia.

Exclusion from political system

I think the nine ministers from the component parties of BN did a courageous act to stand by the concerns raised by religious minority groups and individuals. I do not think these voices of concern constitute an open challenge to the constitution and constitutional government.

Minority voices anywhere need an assurance that the existing leaders and institutions represent them and share and promote their values, interests and objectives. People, especially the marginalised, need to know if the political system has the capacity to translate their values, interests or objectives into desired outcomes. Unless these matters are addressed satisfactorily, people do feel excluded from the political system. The political system has to be representative, efficacious and accountable.

I have, in the past years, occasionally penned something on Art.121 (1A). I have realised that the occasion of writing on a contentious matter is more like packing away a worry to me. I sort of packed it away after thinking it through and not have to worry about thinking about it again. My last writing on Art 121 (1A) was in relation to the Shamala case (conversion of Hindu infants to Islam)

In that case, the High Court ruled that Art. 121 (1A) ousts the civil jurisdiction over the Hindu infants who had been converted to Islam. I am of the view that the majority of cases where the High Court claimed it had no jurisdiction were cases on conversion out of Islam.

In the Shamala and Moorthy cases, the issue is whether the infants or the deceased are Muslims. These two cases relate to conversion into Islam. Thus, what is clear to my mind is that the late Moorthy is Hindu. What needs to be proved is whether he is Muslim. The matter then sits in the High Court for disposal under Art. 121 (1A).

Select Committee

It was by chance this week that while trying to dispose stuff I had accumulated since my teaching days in International Islamic University of Malaysia (IIUM), that I came across Ahmad Ibrahim's paper, 'The Shariah court and its place in the judicial system'. This was a pre-1988 paper.

The good professor said on page 39, 'The unsatisfactory position of the administration of law in the Shariah Courts was realised by the government and the Muslims in Malaysia with the result that a committee was set up under the chairmanship of the late Nasir bin Ismail to consider the position , powers and status of the Shariah Courts and the judges of the Shariah Courts.

'This Committee submitted its report to the government recommending that (a) the organisation of the Shariah Courts should be separated from that of the Majlis Ugama Islam in the states; (b) that the status and jurisdiction of the Shariah Courts should be improved and increased and (c) the status and the position of the judges of the Shariah Courts should also be increased and a judicial and legal service set up for the judges and officials of the Shariah Court and the prosecutors before the Court.'

A footnote identified the report as Lapuran Mengenai Kedudukan Mahkamah-Mahkamah Syariah dan Taraf Kadi Seluruh Malaysia, 1981. This report may be with Pusat Islam or Jakim or the Prime Minister's Department. This is the first report on the matter. I have no information on further reports which led to the 1988 constitutional amendment of Art. 121 (1A).

On a final note, I think it might be prudent to support the setting up of a Parliamentary Select Committee on Art. 121 proper (which includes Art 121 (1A)). This was proposed by Lim on Jan 5.

The setting up of a parliamentary committee would allow hearings of interested parties and develop a record of these. These will then become part of historical documents to the constitution. At the moment, Pak Lah is directing the Attorney-General Abdul Ghani Patail to draft "subsidiary laws" to overcome the impasse.

The AG is an extension of the executive. Perhaps the concerns raised by civil society groups thus far should merit a closer scrutiny by a parliamentary select committee rather than government lawyers.

Salbiah Ahmad, Lost in interpretation (Malaysiakini).

Lawyers Committee for Human Rights (1989), Malaysia: Assault on the Judiciary.

The International Bar Association (et.al), Justice in Jeopardy, Malaysia 2000.

Carrie R. Wickham (2002), Mobilising Islam: Religion, Activism and Political Change in Eqypt (New York: Columbia University Press).