The controversy surrounding calls for amending Article 121 (1A) of the Federal Constitution and the ensuing debate has only convinced me of the inability of our politicians and people to debate any issue that touches on race or religion in a detached, objective, impartial and rational manner without pandering to our petty prejudices and over-blown sensitivities.

Perhaps this is the result of decades of political conditioning by threats of intimidation and resorting to oppressive laws on sedition and internal security that has resulted in people not being able to conduct any debate in a civilized and restrained manner. A sad outcome indeed for civil society and our desire to achieve developed nation status by 2020 not only in terms of economic progress but also in terms of political and societal maturity.

I am opposed to any amendment to Article 121 (1A) simply because it is too late to turn the clock back. The unamended provision caused a great deal of uncertainty for the civil court as it was called upon to determine issues that were predominantly within the jurisdiction of the Syariah court. The civil court can never be a specialized court in respect of religious matters. It would only create confusion and delay the hearing of matters that require expert testimony on the application and interpretation of the Syariah and other religious edicts.

However, when put in perspective, those who now strongly advocate no change to Article 121 (1A) should also remember that the Syariah courts functioned effectively since 1957 until 1988 when the amendment was made and until then nobody was seriously questioning the status of the Syariah courts or the jurisdiction of the civil courts either. Politicians and the people were content to accept the status quo. It was only when the government embraced and propagated its Islamic policies and started to compete with PAS on issues pertaining to Islam and its status within the country that controversy erupted fueled by certain controversial decisions of the civil courts on the issue of Muslim conversions. Since then the secular nature of the Constitution has been under constant threat given the competing interests of Muslims and non-Muslims.

In order to avoid the unfortunate consequences that have emerged from this long drawn debate about religious freedom and minority rights, it is best that Article 121 (1A) be retained and other subsidiary legislation be looked at to allow the civil court to intervene in limited circumstances where non-Muslim rights are affected.

I am against setting up a Constitutional Court for such purposes as it will create further confusion as to the status of the civil courts as presently constituted and further burden our overstretched judicial resources. Instead, the High Court should have jurisdiction over the matter if it involves non-Muslim parties or rights and once it determines the preliminary issue of whether the matter ought to be heard or tried in the Syariah court, then it should decline jurisdiction and transfer the case.

Strict rules of procedure

This can be done as in the US, by filing a motion in limine to determine the preliminary issue. However, expert testimony will have to be called. Most of these cases can only involve issues of conversion into Islam. Issues pertaining to converting out of Islam should remain exclusively within the jurisdiction of the Syariah court including that of non-Muslims who converted and now wish to renounce Islam.

The religious authorities should also implement strict rules of procedure to govern cases of conversion into Islam to ensure that proper records are kept and that the family members of the convert are duly informed. Conversions of minors without the consent of both parents should be prohibited. No automatic conversions should be allowed just because one parent embraces Islam. Rules have to be formulated in order to make a just and equitable distribution of the estate of the convert so that the non-Muslim family members and relatives of the convert are entitled to a reasonable portion of the convert's estate. These changes will go a long way to allay non-Muslim concerns.

I disagree with suggestions to allow non-Muslims to appear before the Syariah court. Firstly, the Syariah is not the personal law of non-Muslims and, secondly, it would not be right for non-Muslims to subject themselves to the jurisdiction of what is in essence an ecclesiastical court for Muslims.

Arguments about Article 11 of the Constitution have to be put in perspective. In order to avoid doubt and not create further confusion, it should be amended to read that it has no application to Muslims who shall continue to be governed by the Syariah law which is their personal law. As the Constitution defines a Malay as one who professes the Muslim religion, any attempt to over-extend the import of Article 11 will only cause unnecessary controversy and socio-political problems that will by implication touch on Malay privileges provided for in the Constitution. The country is not ready for that kind of social re-engineering given the entrenched nature of race based policies in every aspect of our life. It will take several generational changes before something as profound as this can even be considered. Although, it must be remembered that Islam does not relate to any particular race or ethnic group nor does it advocate special rights for Muslims.

The formation of an Inter-Religious Commission while having many benefits is not viable at present given the entrenched views of many parties and the perceived interference in matters that do not concern other faiths or beliefs. There is a clear lack of maturity and ability to debate with an open mind.

Problem with policy implementers

I doubt that any such proposed commission will be able to reach agreement or consensus on any controversial issue. Instead, the cabinet should form a committee to deal with such issues. Its deliberations will be confidential and it can avoid too much public debate. However, all parties should be allowed to make representations to the committee when problems arise.

The government must also direct both state and local government authorities to be more sensitive to religious issues notably pertaining to places of worship and other facilities for religious minorities. Often the problem is not with the policy makers but the policy implementers who are clouded by prejudices and religious zeal to the point of offending others. Religious leaders, teachers and scholars should also be warned that fanning religious prejudice and bigotry will be severely dealt with. These people should be re-educated in racial and religious sensitivities.

In this context, education programmes at all levels should be implemented to teach all Malaysians from a young age of the need to respect each others religious beliefs and practices. In this context, comparative religious education or studies in schools and universities should be encouraged including in religious schools. The Institute for Islamic Understanding (IKIM) should be consulted on such programmes and it can for the time being coordinate inter-faith issues. A parliamentary select committee on the issue will be too politicised and attract unwarrented media attention.

Much has been said about the memorandum sent to the prime minister by non-Muslim cabinet ministers and its subsequent retraction. I agree with the prime minister that sending a memorandum is in breach of cabinet convention and practice. It gives the impression that the cabinet is divided over the issue and that non-Muslim views are not being heard. A cabinet should never be divided into racial or religious groups. It is a collective body that is answerable to the King and Parliament. Its reaches its decisions based on consensus and the convention on collective cabinet responsibility is sacrosanct. The non-Muslim ministers should have raised it at the cabinet meeting itself or alternatively informed the prime minister in private that they intended to raise the issue. After all, it is the Prime Minister who in consultation with the Chief Secretary to the Government who is also the Cabinet Secretary who determines the agenda of cabinet meetings.

Lastly, while the demonstrations for and against the issue have been unfortunate in their tone and manner, it has brought the issue into public debate, now we should allow the government to respond in due time after considering all views. Racial and religious harmony should not be affected by these debates provided they are restrained and well mannered.

Review constitution

The government must also be honest in its definition of an Islamic state and the attributes of such a state. Perhaps the time has come to review the Constitution to implement Islamic laws in its fullest sense provided they do not affect non-Muslim rights. By this I mean a comprehensive code of Syariah law to govern all aspects of Muslim life and the Hudud to replace the penal code and other criminal laws in respect of Muslims.

However unjust the outcome, especially, when crimes are committed jointly with non-Muslims, the Hudud should apply to the Muslim offender only. The laws of contract, tort and commerce should be governed by the Syariah and Muslim parties must adhere to these principles. The civil laws will only apply to dealings with non-Muslims including non-Muslim foreigners. The same would apply to corporate and company law. Two parallel legal systems should be allowed to exist side-by-side under the Constitution.

The Syariah courts should not only include a Syariah Appeals Court but also a Syariah Supreme Court with a Syariah judicial and legal service including a Syariah attorney general. A religious police force should be formed under the religious authorities to police Muslims to ensure that they observe and practice the tenets of their religion faithfully failing which they will be subject to prosecution. It cannot be denied that there has been a decline in moral values and norms of behaviour among Muslim youths in recent years. This may be one way for the government to eradicate social ills within the Muslim community. It is obvious that there is no future for a secular Constitution in Malaysia where the role of Islam is only confined to rituals and observances.

As Islam is a way of life, this experiment in some sort of hybrid concept of an Islamic state as being practiced by the government is unworkable and is bound to cause more problems then solutions as people become more educated and start questioning their beliefs and value systems. As this is clearly not acceptable to the majority of Muslims, then the government should entrench an Islamic system of government that adheres to the true teachings of Islam and non-Muslims should be accorded a secondary role in any such system but with their rights protected.

At that point in time non-Muslims must consider their options and accept the reality that the Malaysia that all of us both Muslim and non-Muslim envisaged in 1957 has changed irretrievably.

GERARD LOURDESAMY is a lawyer with an interest in constitutional and human rights issues. He also sits on the Legal Profession Committee of the Bar Council and on the Disciplinary Committee of the Advocates and Solicitors' Disciplinary Board.