Friday, August 15, 2008

Life at the Bar

Speech by K. S. Dass at the Bar Ethics Lecture Luncheon at Hotel Hyatt, Johor Bahru on Wednesday 16.7.2008.


Speaking about one’s experiences at the Bar is not easy because it may sound like an autobiography.

One lawyer’s experience years ago or a generation ago or generations ago may be good material for reading but hardly good for emulating. Things have drastically changed over the last fifty years with the advent of modern science and technology and with the ever changing attitude of the people generally. For example thirty years ago it would have been unheard of it there is no free flow of sherry when there is a call to the Bar, the same flow was seen when there was an elevation to the Bench, but that has become a thing of the past. Today, we are served with syrup with lot of sugar in it. That is the social side of the legal profession. Whether a lawyer’s life will be as sweet as syrup is another matter. The legal profession could be very attractive but very exacting and punishing. It is unlike the jackfruit which is thorney and unsightly to look at but has sweet pulpy segment inside. Legal profession, from the outside, is glamourous but inside it is exacting, punishing and at times very ugly.

When someone speaks of his experience, he would only reveal the brighter side of his career omitting the mistakes, blunders and errors he has done. Seldom would one admit that he had been wrong – more so lawyers who will never admit that their clients were wrong, a blind faith in their client I suppose. Perhaps that is the modern trend.

Lawyers are not universally admired. William Shakespeare said : “Let’s hang the lawyers.” Jeremy Bentham wrote : “What the non-advocate is hanged for, the advocate is paid for, and admired.” The lawyer hires himself out to do injustice or frustrate justice with his tongue, wrote John Stuart Mill. In the United States they are described as the hired guns. Whether a lawyer wants to be a hired gun or an anchor of morality is upto him or her.

Lord Denning confessed that when he was young he wasn’t concerned so much with the rightness of the cause, “I was concerned only, as a member of the Bar, to win if I could.” he said.

There is nothing wrong in attempting to win the case but it should be done according to the rules, and without misleading any one. Never believe and behave as if your client is an angel and his opponent a replica of the devil.

The debate whether the lawyer must have his client’s interest or the ends of justice as paramount has been going on for a long time. It is now described as the role morality – reflecting client’s interest and common morality reflecting the interest of society. A lawyer has to look into both and come to a rational choice. His contribution to the development of law cannot be lightly forsaken.

Every judgment of the court although affects the parties in a particular case, in fact, is a declaration to the society how the courts will act in a given situation, and as a lawyer involved the role he or she has to perform is of utmost importance- thus, it is not only the client’s interest which is paramount but the interest of the society.

Those who are at the threshold of the legal career should always remember that the legal profession is one which, if you are willing, will never stop teaching you. It is one profession which pays you to learn. A client comes to you with a problem and you are supposed to solve it. In trying to solve the client’s problem, we are learning and there is no end to learning in the legal profession. Lord Denning once remarked: ‘the more I read the little I know.’ Erasmus who saw himself as a citizen of the world and a monk of the fifteenth century, is attributed to have “freed European scholarship from its intellectual servitude to the past and prepared the way for the reformation………”1

Erasmus studied and during his travels had come across a precept from an unknown philosopher which influenced him profoundly: “ Live as if you are to die tomorrow, study as if you are to live forever.”2

Those who kept on studying are still living although they are dead and gone. Their works have been immortalized in journals and in books. Every religion encourages learning and lawyers who deal with people’s problems have to be alert and this they can succeed in doing so if they do not abandon learning. Learning alone will not suffice. Lawyers must be prepared to analyse what they have read and understand the substance. A cow which eats the pages from the holy book does not become holy. A donkey which carries books of knowledge does not become an intellectual. Lawyers must understand this.

Coming back to the experiences that I have gone through, I can say that each lawyer has his or her own way of handling cases. It is difficult to emulate another because an individual may have different ways of dealing with his clients, with the judges and with his peers.

So each will have to develop his or her own method in dealing with the clients, with the court and with the peers; but, make sure they are 1. The First Freedom, a History of Free Speech. Robert Hargreaves, at 41 (Sutton Publishing 2002)
2. Hargreaves, at p. 42

within the bounds of normal courtesy and ettiquette. In dealing with
your peers there are certain guidelines in the rules of etiquette which you should familiarize.

Dealing with the clients is the most vulnerable aspect of the profession. No client will be satisfied even if you had obtained the best bargain for him or done the best for him. Your own client is your worst enemy, more so in the modern world of materialism. The attack on lawyers is very serious and they should be very careful when dealing with their clients.

Complaints to the Disciplinary Board had become rampant which does not vet the complaints but calls the lawyer to explain with a warning that if no explanation is given it will be referred to the Disciplinary Committee, no matter how trivial or vexatious the complaint may be.

Physical assault has also been employed by disgruntled clients. One senior lawyer was chased with an umbrella around the court house by a woman client after she had lost a case. This happened in Johor Bahru High Court. Lord Hailsham a former Chancellor recalled that when he was a young barrister, a witness he had cross-examined appeared suddenly from behind a pillar as he left the court and said, ‘Young man, you made me out to be a liar. Take that and that and that.’ And hit him three times with her umbrella.3

Clients suffer from selective amnesia. They will tell you something and forget it quickly and a busy practitioner will take it for granted and
3. Advocates by David Pannick at p. 31 Oxford University Press [1992]

prepare the case by giving some advice which would put the client at ease. When things go wrong the client becomes very hostile and blames the lawyer. There are many ways of avoiding this. One way is when you are taking the client’s instructions treat him as if you are cross – examining him, especially when fraud is alleged. Then tell him the strengths and weaknesses of his case. Don’t ever tell him that his case can be won with hands down. You will never know what your opponent has up his sleeves or what the judge will have in his mind looking at the evidence.

I recall a case when the judge had given judgment in favour of my client and the court had adjourned, my client was agitated. He said, ‘I want the lawyer to cut off his hand!’ I scolded him. ‘What nonsense is this?’ He replied, ‘My opponent’s lawyer said to me if I can win this case he will cut off his hand!’ The moral of the incident is don’t ever risk your physical organs or your honour. Winning or losing a case is common. If a lawyer is dissatisfied with the court’s decision there is always a remedy – appeal.

An advocate who loses a case should be strong enough to accept the defeat. As a gentleman of the Bar take it on the chin. If a lawyer is dissatisfied with the decision of the court he should advise the client to appeal. The decision to appeal must come from his client. The advocate should not balm his injured feelings or ego by forcing an appeal on his client.

Judges are also human beings and they can be very sensitive to criticisms which go beyond fair comment. Some lawyers become too emotional, as a result refuse to accept a decision that had gone against him or her. You ought to be careful when dealing with the judges and avoid being cited for contempt of court.

In the case of Lord Advocate v Jameson, the lawyer wrote a letter to the judge reflecting his judicial conduct, containing matter disrespectful and insulting to the court and injurious to the administration of justice. The Scottish Court of Session found that this was a “high offence against the dignity of the court and reprimanded the
lawyer for his contempt.” 4

In Nova Scotia a lawyer wrote to the Chief of Justice complaining that, ‘ I can’t help thinking that I am not fairly dealt with by the court or judges, and that the well beaten track is often departed from some bye-way to defeact me.’ The Judicial Committee of the Privy Council’s found the lawyer guilty of contempt, ‘of the most reprehensible kind.’5

In our jurisdiction we had a similar case. The Plaintiff who succeeded in the High Court lost on appeal. The advocate wrote a letter to the judges criticizing the judgment. Delivering the judgment of the Supreme Court, Azmi SCJ explained, the advocate was needless to say……………extremely unhappy and disappointed with the outcome. He embarked on the extraordinary mission of writing various letters to the court and to the solicitors of the appellants and copied to others, criticizing the court’s judgment in allowing the appeal.” Those letters were “highly derisive” of the court alleging that the decision was “unjust and biased” and threatening that unless the judgment were to be reviewed, there is no justice in the court. The advocate was fined RM5,000.00 6. In a Singapore case, an eminent lawyer remarked that the judges by refusing to re-open the appeal they were setting the seal 4.[1822] 1 Shaw 285 referred to in the Advocate by David Pannick
5.In the matter of Thomas James Wallace [1861] CR 1 PC 283, referred to in the Advocate by David Pannick.
6. The Attorney – General v Arthur Lee Meng Kuang [1987] 1 MLJ 206
open dishonestly. Although the judges took no notice of this the advocate in response to a challenge by the opposing advocate wrote the same remarks in a letter. The matter was referred to the Inquiry Committee of the Law Society which found that the advocates conduct was improper and fined him $250-00. His appeal to the Privy Council was dismissed.7

Will it be any different for an advocate who was unsuccessful in court to publish an article insulting the judge? In such a case, it was held contempt of court had been committed. This was held in the case of Re Sarbadhicary8 in 1906 by the High Court in Allahabad, India. The barrister was suspended from practise for four years.

It is true freedom of expression and speech are guaranteed to the advocates but they cannot ignore the limits. If a judge seeing such a scurrilous and abusive letter may consign it to the waste paper basket or on reading an article by an unsuccessful advocate containing insulting remarks ignore the insult remembering the fable of the fox which having failed to reach the grapes concluded that they are sour grapes. Silence is golden- it may be an option but lawyers themselves will have to decide. Last but not least, in the legal profession there is not substitute to hard work. Time will always be running against you. How you manage the time depends on you, and you alone, without sacrificing your client’s interest and the interest of justice.

A lawyer’s life can be stressful if he or she let personal emotion to take control. Be sincere in your work for there is no pride when you have won by misleading or hitting below the belt. If you have discharged
7. Hilbourne v Law Society of Singapore [1978] 1 WLR 841
8. Re Sarbadhicary 23 TLR 180 [1906] referred to by David Pannick in Advocates


your duty honestly the result should not bother you. You are not the decision-maker and let that be with the judges. Do good and be good to yourself.

EXPECTATIONS OF MALAYSIANS

K. SILA DASS

Khalil Gibran (1883-1931), the renowned Lebanese poet, philosopher and artist wrote : “Are you a politician asking what your country can do for you, or a zealous one asking what you can do for your country? If you are the first, then you are a parasite, if the second, then you are an oasis in a desert.”

Now that the elections are over, those politicians who have ascended to the seats of power will have to decide whether they are going to be oases in the deserts or parasites. Strictly speaking, they have no option but to refrain from being parasites, otherwise Malaysians who have learned to reject the parasites will not hesitate to use it again.

So many things have happened in the recent past, and it was always felt that the Barisan Nasional will weather the storm and return to power. It had expected to retain two-third majority, but the combined opposition was determined to deny just that. BN had been denied two third majority. What will happen next is everybody’s guess. Fortunately, there appears to be a disciplined, mature approach to this shocking results. The euphoria of victory has not been translated into irresponsible processions or celebrations. The leaders of all parties have acted responsibly to ensure the transfer of power in the various states, BN had lost its hold.

BN will eminently conduct post-mortem to discover its dismal performance at the polls. And it will learn that it is BN’s own makings which had caused its poor showing. Among the many reasons for its losses, BN must realize that some of its leaders have been behaving in a manner that they owned the country, or the country owed them; and that the people were to be there to be ruled forgetting that it is the people who gave them the mandate to rule. Besides, arrogance of few leaders have had been very pronounced leading the people to feel that they are powerless to remedy the situation. When remedies were needed, the arrogance of these few leaders substituted fair analysis and approach. The people were told to shut up. The results of the 8th March 2008 show that the Malaysian voters will not countenance such arrogance for far too long.

The Malaysian people have decisively rejected arrogance as part of the Malaysian political norms, culture. Their decision ought to be respected.

The victorious parties have the paramount duty to translate the promises they made to the people during the election campaign. Thus all parties must evaluate the gains and losses, in a pragmatic manner. The victors should not lull into a false sense of security that the Malaysians could be hoodwinked or that they have poor memory. The recent elections results have shown that the Malaysians whilst are able to endure the disappointments, arrogance of its leaders, and are prone to suffer constantly, are capable of putting an end to such suffering.

Barisan Nasional’s responsibility will be far greater than it was. Although its component parties have suffered miserably, the surviving dominant partner should demonstrate that it will not abandon the vanquished. It was a general policy of BN, its attitude toward the people that had brought about the rude shocks.

The opposition, DAP, PKR and PAS, having made significant impact in Malaysian politics, must remember that it cannot afford to be seen to wanting power but lacks the capability to exercise it for the benefit of the people and Malaysia. Besides, it must show that it has the capability to offer a clean, efficient governance with transparency as its hallmark. Power brings strength, but it could also bring disaster when it is wrongly used or abused.

The victorious opposition parties have the difficult task to coalesce their good thoughts and bring about just rule in all the states that are under their control. They should work to ensure that Malaysia is the home for all Malaysians. Malaysians are aware of the distinct objectives among the opposition and it is obvious each will not want to encroach into the other’s political objectives but the Malaysians’ aspiration is to see governance in the states and in the Centre, which will be attentive to the people’s need. Malaysians will have to wait and see whether the objective differences are likely to yield unpleasant consequences which none of the opposition parties and Malaysians envisaged, or the differences will be put aside for the general good of the Malaysians and Malaysia.

LAND LAW AND THE JUDICIAL FIASCO

K. Sila Dass

Introduction
The function of the law is to regulate human affairs so to avoid regular conflicts and the possibility of lawlessness. In a civilized society it is envisaged that law will protect everybody and everybody’s right. There can be no doubt or confusion over this simple proposition; yet, recent case laws seem to suggest that there could be instances when an innocent person could lose his most cherished rights and there is nothing the court do.

The most characteristic feature of a civilized society is the existence of an effective, independent, uncorrupt judiciary which administers justice in accordance with law and upholding the spirit and letter of the constitution. The powers of our Constitution had no doubt that the people of Malaysia (initially Federation of Malaya) wanted a constitution that will have provisions consistent with a civilized society aspiring to be a civilized Nation. It is with that noble idea Article 4(1) was enshrined which says that the constitution shall be the supreme law of the country.

“The constitution is not a mere collection of pious platitudes” so pointed out Raja Azlan FJ (as he then was and now HRH the Sultan of Perak), in the case of Loh Kooi Choon v. The Government of Malaysia 1.

1 (1977) 2 MLJ 18 at p. 188
The fundamental liberties that are enshrined and which are the supreme laws of the Federation could be gleaned from Part II which deals with (Art. 5) (a) liberty of the person; (Art. 5) (b) prohibition of slavery and forced labour; (Art. 6) (c) protection of laws, retrospective criminal laws and repeated trials; (Art. 7) (e) Equality; Art. 8(f) Prohibition of banishment and freedom of movement; (Art. 9), (f) freedom of speech, assembly and association, (Art. 10); Freedom of religion (Art. 11) (g) Rights in respect of education (Art. 12) and (h) Rights to property (Art. 13). All these are sacred rights and they cannot be whittled down or denied except where there is a built-in restrictions and this has been recognized, however, no force or institution could effectively invade, erode these rights and if they do so, such an act will be unconstitutional.

Under the constitution an individual has certain fundamental rights upon which not even the power of the State may encroach. These powerful words are from Raja Azlan Shah (as he then was) in the case of Loh Kooi Choon, supra.

Rights to property
The objective of this essay is to address the issues pertaining the Rights to property as enshrined in the constitution and the lukewarm appreciation of it by the court, especially the Federal Court.

Article 13 clearly says that no person shall be deprived of property save in accordance with law.

The word “property” means land, and land also includes building, structures, fixtures annexed to it. This meaning is supported by Clause (2) of Article 13 which says that no law shall provide for compulsory acquisition of property without adequate compensation.

While Article 13(1) speaks of a person’s fundamental rights over his property, the mechanism to protect these rights are to be found in the National Land Code, 1965. It would be safe to say that the National Land Code complements Article 13(1) of the Constitution and in so far as the rights of the land owner (or proprietor) are concerned with, Article 13(1) and the protection accorded by the National Land Code should be considered together.

National Land Code 1965:

The National Land Code 1965 is an Act of Parliament and it codified all the existing laws into one. Thus, the further Land Code (FMS) and all over State Land Enactments although repealed over the National Land Code 1965 came into effect.

Effect of a Codifying Act A codifying Act is an important piece of legislation. It set out to present an orderly and authoritative statement of the leading notes of law on a given subject, whether those rules are to be found in Statute Law or common law. (see Ilbert’s legislative Methods and Forms)


The basic rule for a codifying statute is to look at the language and what is its natural meaning 3(See Odger’s Construction of Deeds and Statutes, 5th Edition at p. 335). In the case of Bank of England v. Vagliano 3 Lord Hershell said :

“I think the proper course is in the first instance to examine the language of the statute and to ask what is it its natural meaning un-influenced by any considerations derived from the previous state of the law and not to start with enquiring how the law previously stood and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. I am of course far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If for example such a provision be of doubtful import, such resort will be perfectly legitimate.”

When a codifying statute is under deliberation it is permissible to look at the state of the provisions of law in cases of ambiguity or where words have acquired a technical meaning4.






3. [1891] A.C. 107 at p. 144
4. See Yorkshire Insurance Co. Ltd v. Niebet Shipping Co. [1962] 2 QB 330.

Saturday, August 9, 2008

CHILDREN WITHOUT BIRTH CERTIFICATES

by K. Sila Dass

If children born in this country do not have birth certificates, it is indeed a shameful state of affair, for, those children will be denied education and eventually deprived of their right to lead a decent life as citizens of this country. And if they turn to crime who is to be blamed? If we look at the statutory provisions relating to births we can see that although they are strict they have been conveniently flouted. I said it is a shame because of the cavalier manner in the enforcement of the law in this regard.


Notwithstanding the fact that the law on the registration of every birth is very clear and it imposes a duty on the father or the mother of the child to give information concerning a birth of a child, it also imposes identical duty on the occupier of the house in which the child was to the knowledge of that occupier born, any person present at the birth, and any person having charge of the child. [See section 7(2) of the Births and Deaths Registration Act 1957 [BDA1957]


Apart from the persons qualified to give information of a birth the law imposes a duty on the Superintendent-Registrar and the Registrar of Births and Deaths to procure by all means in their power the best and more accurate information respecting any birth or still-birth or death which may have occurred within the registration area and to cause particulars of the same to be recorded, so far as is practicable [See section 28(1), BDA 1957].


Since the information of the births and deaths was considered to be of great importance, the legislature made it a duty of every police officer, penghulu and headman to obtain information of every birth within his respective area and also information respecting the lawful father and mother of every child in his area and the occupier of any house in which any birth may have taken place and give notice thereof to the Registrar. [See section 28(2) of the BDA 1957].


It must be added that the duty of the Superintendent Registrar and the Registrar as envisaged in Section 28(1) and the duty of every public officer penghulu and the headman as envisaged in Section 28(2) of the Act of 1957 are not limited to the information relating any birth but also includes the collecting and registering information as to any still birth or death that had occurred.


The most salient aspect of the duty of the police officer, penghulu and the headman is the penal provision which says that any one of them who has in his possession of any such information of birth, still-birth and death within the respective area who wilfully neglects or omits to disclose the same to the Registrar shall be guilty of an offence and be liable on conviction to a fine not exceeding fifty ringgit (see section 28(3) of the BDA 1957).


The effect of section 25(2) of the Act of 1957 is that it is the duty of every police officer, penghulu and headman to collect [obtain] the information of every birth, still-birth and death within his respective area. By this the legislature had in mind that every birth must be recorded so that there will be sufficient protection of the child. Thus, if the information of a birth has not been collected (or obtained) as envisaged by section 28(2) it means the named officers have neglected their duty.


If there are children in the country without birth certificates thus depriving them the right to education and all the privileges attached to their citizenship right, it means those who have been statutorily required to perform a very essential duty have neglected to do so. It is the parents’ fault no doubt, but we must acknowledge the fact that parents in the category who have failed to register the birth of their child are illiterates and no one informed them of their responsibility. It might be said or could be said that there had been absolute neglect on the part of the authorities to inform or educate the parent – public the necessity to register every birth of their offspring. This is one factual situation that had been tormenting parents and their children without birth certificates. One might be prompted to say that ignorance of law is no excuse. If so, what about public officers who have neglected their statutory duty?

The law is very clear and it the duty of the Registrar of Births and Deaths to register the birth of every child without requiring the proof of the marriage of the parents. The Act of 1957 does not say that the Registrar of Births and Deaths should satisfy himself of the validity of the matrimonial status of the parents of the child that was born. The act of 1957 simply requires the registration of the birth of every child without having to look at the legitimacy or illegitimacy or the religion of the parents. I am told that there have had been instances when the Registrar of Births and Deaths has refused registration in the absence of the marriage certificate of the parents. They have not been able to identify the law under which this unreasonable demand is made. And because of this children are left with no birth certificates and their future doomed.


Now reverting to the position of the children without birth certificates, it has become a very serious problem, because these unfortunate children will be not be admitted to schools and no one seems to realize that in such a circumstance their future will be bleak. I have in fact pointed out this predicament faced by children without birth certificates in my articles in the Makkal Osai, a Tamil daily on 7 February 2006, and on 11 April 2006 respectively. I did write in the same paper (Makkal Osai) that a general amnesty be granted to these unfortunate children without birth certificates. I also suggested that a survey should be carried out in every state to ascertain the number of children who are without birth certificates. In case the parents are unable to confirm the date of birth of the child, the parents should be allowed to select a date of birth. Those children who were born in this country, it should be sufficient if family friends or those who have the information could give a certificate confirming the child’s birth. Those who have children in their care but have not been able to trace the biological parents should be allowed to choose a date of birth and have it registered.


It is a notorious fact that the children who are caught in this dilemma are mostly from the Indian community. As a transitional means the authorities will be doing a good service to the children who are in such predicament be allowed to be enrolled in schools first and let the process of registration of birth take its own time. The motive must be to save the children and give them a decent life with education. This must be approached with compassion and humane considerations.

Thursday, May 8, 2008

Is Karpal Disloyal?

Karpal Singh’s statement that the Sultan of Perak has not the jurisdiction over the transfer of Datuk Jamry Sury from the Perak Religious Department has been taken out of context and a lot of fuss has been generated. Karpal’s view has been dealt with emotion rather than with a clear analytical mind. All the comments critical of Karpal’s statement display ignorance between a genuine challenge to jurisdiction and acts that could fall within the realm of disloyalty. And these puerile comments demanding criminal sanctions against Karpal are but personal political ambitions to cloud the actual issue. Under the umbrage of fierce patriotism they envisage to muffle freedom of speech.

I am confident that the Sultan of Perak who is trained in law and had been the head of the Malaysian judiciary is aware raising objection to jurisdiction is not something out of the ordinary. No one in his sane mind would think that a lawyer who had raised an objection to jurisdiction in court has committed contempt of court, thus should be punished. Karpal is perfectly entitled to raise the issue.

K. Siladass

Tuesday, May 6, 2008

What is Mahathir upto?

Tun Dr. Mahathir Mohamad, the former Prime Minister, has fired the first salvo against Datuk Seri Abdullah Ahmad Badawi, the current prime minister, in the inaugural posting of the former’s blog. Mahathir has raised the following issues:

  1. The proposed change in the appointment of judges would involve the amendment of the Federal Constitution and this could only be achieved with a two-third majority, which numerical superiority the ruling party lacks;
  2. In the light of the magic majority being wanting, would the ruling party work with the opposition and display its weakness, and
  3. Will there be a quid pro quo, a bargain with the opposition?

Are these issues actually reflective of the concerns of an erstwhile prime minister or were they raised for the sake of showing his pretended concern; or sowing the seeds of discontent among UMNO members?

Everyone knows that any constitutional amendment requires a two-thirds majority, and everyone knows that Abdullah Badawi has not that magic number in the present Parliament. Mahathir should credit Abdullah Badawi and his advisors for having a modicum of knowledgeability on this crucial issue because Abdullah Badawi has agreed to the change, and he would not have done so without ascertaining the reception he will have in Parliament. Even if the ruling party has not the required two-third majority, since change in the appointment of judges is a national issue, seeking the support of the opposition cannot in any way be wrong. The opposition had always supported the call for the creation of a Judicial Commission and they would naturally support the motion in Parliament for such a change.

Seeking, or relying on the support of the opposition to Mahathir seems to display [the Government’s] weakness. Marshalling the support of all parties on a national issue shows the moral courage to do the right thing at a right time. Mahathir’s insinuation that such a course would display the Government’s weakness is a sheer political gimmick to digress from the actual issue and supplies those in UMNO who are clamouring for Abdullah Badawi’s resignation with ammunition to launch a frontal attack. This supposition becomes apparent when we consider the next issue that Mahathir has raised: Will there be a Quid Pro Quo, a bargain with the opposition?

This borders a scandalous proposition. Firstly, Mahathir has not grasped the significance of the proposed change in the appointment of judges. Secondly, he has ignored the fact that the opposition are also in for change. So what quid pro quo is Mahathir talking about? Perhaps we have to understand his brand of politics and that is to reward those who would support his policies of action, howsoever unpopular they are. Once again this is Mahathir’s ploy to trigger fear in the minds of UMNO members, to convince them that Abdullah Badawi is leaning on the opposition, thereby weakening UMNO’s position. A clever device no doubt but Malaysians and UMNO members are not so easily swayed by partisan politics when it comes to the welfare of the Malaysian nation.

K. Siladass

I Spoke to God

As I was walking along an isolated park beneath a mountain, I heard a voice, “Stop. I want to talk to you!”

I could not see anyone and I had not the faintest idea whence came the voice. Plucking courage I asked, “Who are you?”

“I am God!”

Suddenly an image appeared before me, which was faceless, colourless and there was not sign of a physical shape. I then heard the sound of thunder accompanied by lightning. To my horror I saw the sea rising not far away and heading towards me. Petrified, I looked at the mountain which seemed to be rapidly growing higher towards the sky.

“I see you’re frightened – why?” Don’t you believe in God?”

“Yes, I am frightened,” unashamedly I confessed, “Your sudden appearance had numbed my sense of reasoning”, I explained. As to the second part of his question, I said, “I am an ordinary man and like my ancestors I live by believing in what had been said about you by saints, seers, prophets and so on, so please forgive my ignorance”, I pleaded. Inwardly I said to myself that this is not the position I would have taken had the question come a fellow human being, who are full of tons and tons of false and foolish pride.

“Don’t you worry. Your ignorance is acknowledged.” The God sounded friendly, although his appearance was still invisible.

“I’ve have to talk to you…..! God said.

“Why pick on me? I don’t know whether I believe in you or whether you’re really God!”

“That’s alright!”

“No! No! I haven’t finished! I don’t know whether you exist! Whether to believe you? Any why should I believe you?”

The God laughed and it was nice to hear; although I must repeat, I could not see him. “Let me tell you! I am God! Can you see the mountain growing?”

“Yes, I can see that,” I answered.

“I will stop that!”

Sure enough, the mountain stopped growing.

“What about the sea which is heading towards me?”I asked.

“That too will return to its rightful place…!”

I was pleased to see that too happened.

“It is up to you to believe or not to believe that I am God. Are you an atheist?” asked the God.

“I’m not too sure. There are a lot of people who do not believe in you and they dispute your existence! Some even have said nasty things about you!”

“Have they?”

“Who’re they?” the voice was full of kindness.

“It’s difficult to name but I can mention a few who have been very vocal about you.”

“Gerard de Verval, the Frenchman made sweeping statements!” said I.

“Has he? What did he say?”

“Won’t you be angry to hear such thing?”

“I’m beyond anger. I’m the symbol of love. The human race being my Creation….”

I interrupted Him. “There was a chap, Charles Darwin, who says the human evolution was from primitive species, especially apes. This means that you had no role in human evolution?”

“Fair enough, but who created the primitive species….?” God asked and I thought that it was a fair question and tried to call Darwin to come to my aid, but he could not be reached.

“You don’t have to look for him. Tell me about others.”

“Gerard de Verval is a Frenchman. The French believe that they are the most civilised politicians, cultured people and they have a lot to offer to the world. This Gerard wrote, “God is dead! Heaven is empty….”

“Did he? How close to truth! Go on!”

“There was this American Erich Fromm, you might have heard of him. He said that in the “Nineteenth Century the problem was that God is dead.”

“Really? Did he say who killed God?”

“Oh no…….he seems to be telling or warning us that the human beings are killing themselves because of insane delusions.”

“That’s interesting. What else?”

“Well there was quite a few I can recall. There’s Frederick Nietzche, who thought that you were dead. William Alabager, the Englishman divine and Latin poet wrote “God lost, but found”. With all these compositions one notorious French philosopher dared to say: “If God did not exist, it would be necessary to invent him.”

The God laughed, and it was soothing to my ears. “Tell me what you want to know….?”

“God, I’m troubled.”

“Why?”

“There are infinite problems in the world and I can’t fathom why unnecessary killings are going on! Do you know the reason? Can’t you stop these killings?”

“I’m afraid I cannot be responsible for the stupidity of human beings. They are the authors of their own misfortunes. I want to stop them straying away from the correct path but the human beings are bent on destroying themselves. If this is the trend, then I may have to think of a way.”

“What will that be?”

“I’m not too sure. Perhaps I’ll destroy everything and start rebuilding.”

“God! If your demolition work were to begin who would be saved?”

“I don’t think anyone will be saved! From the evidence I have, the place I have created has become rotten and a dangerous place for my creations to live. I’ll have to get rid of this system and think of a new one.”

“God, may I ask you another question?”

“Sure!”

“What’s your religion?” I asked.

“I have no religion. I belong to all living things. I am for all. All are mine. I give the heart of love to everyone. In that heart there is no place for hatred. To me all are equals. That is why I ordained death to all who are born. If I had preference for some I would have given them permanency in this world. That itself should tell you that I have no preference and all are equal in my eyes. In my heart there is no distinction between races, religious clauses or castes. All are the same to me!”

“One more question,” I persisted!

“Go ahead!”

“Your creations build places of worship with best architecture and grandeur and they spend millions to erect statues in gold and what not! You who are above all these temptations, why are these done on the places of worship?”

“It’s ludicrous to suggest that I wanted a place for myself where my people could meet and pray to me. I’m not a politician. It’s they who yearn for such follies. I’m omnipotent. I’m everything, so why should I need a place. You want to keep me shut!”

“I want to be in your heart, and you want to put me away within the four walls. It’s like sending your parents to old folk homes when they actually desire to be with you.”

“God, you’re so strong then why do religions keep on barking up a wrong tree?”

“Listen to me, son. The window to knowledge is open. The path to knowledge is not hindrance. All these I did so that humankind could improve their lot and learn to live happily and make others happy. But, you have all these religions clamouring to label me with their brand of dogmatism. I never identified myself with any dogma – and if you claim I am yours, well what can I say, except all are struggling to reach me. So be it. All roads lead to Rome, they say. All dogmas may have identical aim but I’m not going to waste any sleep over it.”

You claim that you’re the beginning - put it in another way you have no beginning and you have no end,” I said.

“True. Even you have no beginning and no end!” said the God.

“How come?” I shouted.

“You see your father begot you, you grand father begot your father and if you backwards, you will find your beginning started sometime at the beginning of mankind. The seed of the first person planted in the woman of a forgotten era had resulted in your existence. You’re the continuation of the original man and your children are the continuation of the original man. Therefore, there is no beginning and no end. You’re first in the continuation.”

“So what about my birth?”

“Yes! That’s the cycle which keeps on moving and it have been moving for millions of years lest the birth on a particular date and time do not mean that is the beginning, nor was your gestation in your mother’s womb the beginning. Your beginning dates back to millions of years.”

The God laughed again. This time it was really loud.

“As for places of worship, I did not ask for all these. I’m everywhere. I gave you a roof over your head. I’m your roof, so why try to create a roof over a roof. You create idols of gold; look at the homes where there are my children who’re hungry. Go and feed them. That’s the best service you can do!”

I was overjoyed, and started chanting “God! God! God!”

My wife shook me violently and woke me up. “Hold on…. hold on…… I’m conversing with God!” I yelled at her.

"Get up!It's time for you to go to work!"


K. Siladass

Monday, May 5, 2008

NATIONAL INTEGRATION

By K.Siladass


Memorandum submitted to the Parliamentary Select Committee on National Integration and National Service in 2006.

Any deliberation focusing on the issue of national integration should begin with an open mind. Parliament’s willingness to hear public view on this issue signals the importance it places on it. It can also be seen that the experiments over a period of forty-seven years had not taken us anywhere in the pursuit of national integration. Perhaps it is also an admission that arbitrary measures in the name of national integration had failed because there was not any concerted effort to read the pulse of the population - an admixture of various races, languages, religions, cultures and distinct behavioural patterns. Thus the deliberation must be combined with maturity, sincere approach, attitude and a desire and political will to discover why the earlier formulae had failed and to ponder what better alternatives would work.

To begin with, it would be unwise to believe that economic amelioration alone would pave way to national integration. It would also be incorrect to think that religious scruples could be the foundation for national integration. Sadly, the experiments based on these elements had indeed failed. We must be ready to admit it and think of other measures that would lead to national integration. A false semblance of national integration would not help us; for, beneath it lies dangerous ingredients of hatred, distrust and hopeless disunity.

We have to consider:

(a) Whether our previous priorities in relation to national integration had been correct?

(b) Whether there has been any attempt to forge national integration at all, if so what was the basis and what are the results?


Equally it will be important to ask ourselves whether we have looked at problems surfacing from time to time on the basis of immediate solution with the intention of pleasing one group rather than looking at those problems in a global way and find solutions which would have helped us along the way to national integration.

Taking the above mentioned questions in their entirety it could be argued that the idea of national integration is easy to enunciate but hard to forge if there is no political will and allow ourselves to be guided by narrow-minded vision.

Thus in the light of practical difficulties in finding permanent solutions towards national integration it may be thought that temporary measures would be adequate; but experience had shown this to be a fallacy.

These, indeed, are uncomfortable, if not disturbing, issues facing Malaysians. And no one would want to address them because there is always the fear lurking in the background that they are too sensitive and our people are not sufficiently mature enough to tackle hard questions. Hard questions are economic questions and although they play pivotal role yet, they are not conclusive. Many of us believed for the last four decades and more, and still believe, that national integration could be achieved if the economic imbalance among the Malaysian people is eradicated. Past events have shown that this is far from the truth.

The economic imbalance that prevailed prior to 1969, the improved economy of the country and generous distribution of wealth to a particular group since then do not show that it has helped to achieve national integration, or, sadly we are anywhere near in achieving it.

If we were talking about economic imbalance of three and more decades ago when national integration would have been a vague concept, the last two decades had seen the divide amongst the various Malaysian ethnic groups becoming more obvious. So much so, an innocuous advertisement had been taken out of context, and given a distorted meaning, calling in racial sentiments. This goes to show that we are still so immature in our understanding of fiction and our inability to distinguish between acting and reality. When our law makers themselves descend so low as to question the artistic talent of an actor or that of the creator of that plot, what more if ordinary people become engulfed with emotions and ignore reason. Instances like these do not help to forge national integration.

Members of Parliament themselves must set an example not to be too sensitive and raise issues which could give rise to unpleasant results. They should be role-models to inculcate and nurture national integration. They should be prepared to ask questions, debate on issues intelligently. It is said that the law makers must be bold enough to ask questions however silly they may be; but then, if silly questions are asked we can only expect silly answers. It is submitted that Parliament has a paramount role to play to ensure national integration develops into a reality. Thus far it has been a pious hope.

Religion and National integration

If correcting economic imbalance had been the battle-cry some three and more decades ago, the trend has changed whereby the impetus is now on religion. Whichever country, and especially a country with multi-racial make-up cannot be too religious prone because we have seen that where religion had been the dominating and dominant factor, national integration had failed and rotting disintegration had set in.

The ramification following the correction of economic imbalance policy has seen a wider divide into ‘Us and Them’ – to borrow the phrase of Samuel P. Huntington in his “Clash of Civilizations”. This ‘Us and Them’ feeling had actually acquired a very sinister connotation whereby it had the effect of preventing national integration and if there is any vestige of belief that it could be ultimately realised it is doomed to fail because the phrase ‘Us and Them’ is based on religious sentiments. This “Us and Them” trend seems to have gained a strong grounding in schools, and that, is very dangerous.

Forty years ago children in schools mixed around freely, talked freely, fought freely without raising religious animosity. Today, schools have become dangerous institutions where hatred, mistrust and animosity are nurtured.

Children are taught that a particular religion is far superior to other religions - children belonging to a particular faith are protected by God and the rest are not. Even in sports religion is encouraged. So much so, even referees are now praying before officiating a game hoping divine help would be available to control the game.

If children grow up; or, are taught to grow up to be faithful to their religion and ignore the rest, then, this will not help national integration.

Children of different races and faiths should be taught to respect one another and love one another and not instill in them a feeling of superiority or inferiority.

It is an open secret that in institutions of higher learning too there is lot of racial polarization. This could only be due to the poor teaching of human values at lower levels and which had crept into institutions of higher learning.

When analysing children’s’ attitude as it was some forty years ago and looking at the children’s’ attitude now, we cannot fail to see that we have been miserably unsuccessful in achieving national integration. There is in fact a fear that children are not getting the best education and there is too much of religious dose in National type schools.

Wherever talents may be found they ought to be recognised and appreciated. They should not be viewed with racial and religious bias. National schools should not be used for propagating religion, and teachers should be trained to keep religion away from classrooms, sports and all other places of school activities. Schools should be secular if we are sincere in our effort to achieve national integration. It is also important that we do not have teachers who secretly harbour the intention to sow the seeds of religious fanaticism in our children.

If schools and institutions of higher learning have become the breeding ground for discontent stemming from racial and religious sentiments, the civil service is also not free from racial polarization.

The uniformed and non-uniformed services do not seem to support the view that National Integration is in place. These services, it is submitted, should be revamped to reflect the racial composition of this country.

The “Four to One” concept, i.e. recruitment of civil servants on the basis of one non-Malay to four Malays was a prudent exercise in the 1950’s and followed during the pre-Merdeka negotiations and post Merdeka era. The employment market, which was very restrictive in those days, is no longer true. Today, ample employment opportunities are available in private as well as public sectors, and it is only fair in the name of National Integration that some adjustments need to be made in the recruitment of civil servants, thus reflecting the Malaysian multi-racial composition.

National Service

Political, social and communal leaders have openly expressed concern over the dangerous trend developing in schools; where, instead of national integration, disintegration seems to be gaining prominence. It is because of this sad social environment that it is felt National Service will help to overcome the racial polarization that had gained much clout in institutions of learning. If racial polarization is not enough, there is an obvious trend to add religious flavour to one’s feeling of superiority and to dislike others belonging to different faiths.

The Government has to tackle this problem before it gets out of control. And it is understandable that this is not an easy task. Perhaps National Service may be the panacea for all the ills that are haunting our younger generation; but, it is doubtful that it could be the only cure.

Racial integration, religious tolerance and Malaysian identity should begin at homes, at kindergartens; on playgrounds, school canteens, sports, arts, music, plays and wherever possible. The catalogue is long and what has been mentioned is only a fleeting glance of the areas that may demand our attention.

Malaysians of all races must feel that they are part and parcel of this land; they must be accepted. That acceptance alone will give our youths the assurance they need. All youths must feel that they have a stake in this country; their services are needed; the country could only survive and scale greater heights through their hard work and endeavour. Malaysians have no choice but to recognise the fact that no one should be left out.

Many stories are currently in circulation that the compulsory National Service is not compulsory. They will be chosen through the computer. The National Service we are familiar with and that we know of and that we are hearing of seem to be poles apart. And it is a kind of lottery; the only difference being in this lottery, some or many will hope that their names do not prop up.

It is hoped that the National Service will not turn out to be a National Picnic nor end up like Rukun Tetangga. It should be applicable to all Malaysian youths and National Service should be used to help promote national integration. It would not be too much if a plea is made that National Service should be secular. Do not introduce religion into it.

Our Prime Minister, Dato’ Seri Abdullah Badawi is on record calling Malaysians to forget their race and religion and to think as Malaysians. I believe this is the appropriate time for us to follow Abdullah Badawi and think like Malaysians, leaving race and religion at home and make the country a beautiful home.

Article 121 (1) (1A) Of The Federal Constitution – An Analysis

By K. Siladass

There is currently a general recognition that the amendments to Article 121(1) and the insertion of Clause (1A) which came into effect on June 10 1988 are the source for endless emotional turmoil to non-Muslim families. Further, the interpretation adopted by the Superior Courts have not been helpful to resolve the problems faced by non-Muslims generally. The concern shown is long overdue and Moorthy’s case is only the tip of the iceberg. There are many cases that have unleashed immeasurable agony to non-Muslim parents. The purpose of this essay is to show the conflicting aspects of the law as it is and the courts’ approach; which, if unremedied, could lead to further problems. Laws need to be enforced but if the same are convoluted, the results could be painful. Any attempt, therefore, in search of remedy must begin with a sincere desire to understand the problems.

The Original Wordings of Article 121(1) of the Federal Constitution

The original Article 121(1) of the Constitution provided that the judicial power of the Federation shall be vested in the two High Courts of co-ordinate jurisdiction and status, namely: One in the States of Malaya and one in the States of Sabah and Sarawak. This was well thought of a provision guaranteeing the independence of the judiciary.

In the case of Haddard, Parker & Co. Property Ltd. v. Moorehead[1] Griffith C.J. expressed the view on section 71 of the Constitution of the Australia which is identical with the Federal Constitution in its original form that, “judicial power means the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has taken action.”

Locally, the late Eusoffe Abdoolcader, a Supreme Court Judge stated that judicial power “may be broadly defined as the power to examine the question submitted for determination with a view to the pronouncement of an authoritative decision as to the rights and liabilities of one or more parties”. The learned judge went on to explain that it is “virtually impossible to formulate a wholly exhaustive conceptual definition of that term, whether inclusive or exclusive … . The concept seems to defy, perhaps it were better to say transcend, purely abstract analysis.”

Thus, it could be seen that whenever the constitutional safeguards are infringed the High Courts had, in the exercise of their judicial power, enquired into the alleged infringement and provided adequate remedy to the extent of striking down provisions which they held to be unconstitutional.

When Parliament, in 1988, decided to take away the judicial power of the High Courts, did it reserve the power to itself? Those who campaigned for this drastic change did not foresee the kind of problems and conflicts that could emerge. Even the late Professor Dr. Ahmad Ibrahim who supported the removal of the judicial power from the High Courts did not pay attention to a situation resulting in denial of any form of justice to the aggrieved persons, primarily non-Muslims when the amendments are construed in a manner inconsistent with the intention of Parliament. He also seems to be leaning towards Islamisation of every conceivable law to the detriment of multi-racial and multi-racial harmony. (See his Article “The Amendment to Article 121 of the Federal Constitution. Its effect on Administration of Islamic Law.)

Having deprived the judicial power the High Courts enjoyed under the Constitution, a new clause was inserted numbered (1A) which says that the High Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

High Court judges, not all though, took the view that with the deprivation of judicial power and the insertion of the new clause (1A) they have been effectively prevented from adjudicating any matter within the jurisdiction of the Syariah Courts. It is hard to believe that Tun Mahathir Mohamed who was then the prime minister wanted the courts to do exactly what they are now doing. However, the courts have never been shackled from enquiring into the intention of Parliament when passing the law, or striking down laws that were inconsistent with the spirit of the Constitution.

Some judges have apparently failed to recognize the fact that the two High Courts, the Court of Appeal and the Federal Court are creatures of the Constitution unlike the Syariah Courts, which are state creatures and their jurisdiction territorial. The High Courts’ jurisdiction pervades within and without Malaysia although there are specific provisions in which High Court the action should be commenced.[2]

Those who advocated the amendment to Article 121(1) in its present form which provides that there shall be two High Courts of co-ordinate jurisdiction, and the insertion of clause (1A) which says that the High Courts shall have no jurisdiction in respect of any mater within the jurisdictions of the Syariah Courts failed to warn themselves that these amendments if not given purposive interpretation could be the imminent source for infinite problems resulting in emotional turmoil among a large section of the Malaysian society.

Notwithstanding clear and authoritative judicial pronouncements on the combined effect of the new Article 121(1) and (1A) in the case of Dalip Kaur, Pegawai Polis Daerah[3] and Sukma Madja[4], some High Court judges have taken a course that was never intended by Parliament.

The pertinent questions that sprang from time to time since the amendments came into effect were:-

(a) Which court would have jurisdiction in the event of there being a dispute between a Muslim convert and non –Muslim in respect of their respective personal laws bearing in mind that non-Muslims have no access to Syariah Courts and they will not want to go to those courts as the Syariah Courts’ knowledge on civil law could be limited;

(b) In the event Syariah courts make orders affecting the rights of non-Muslims what other remedies could the non-Muslims have when they are denied audience in the civil court and they are uncomfortable with Syariah Courts’ Islamic jurisdiction;

(c) In the matter of a dispute over custody of a child born out of the wedlock of non-Muslims but one spouse subsequently opts to convert to Islam what remedies can the non-Muslim spouse have? Whether the present laws are adequate to protect them (and obviously this is the area where the protection seems to cause endless problems) and in the absence of protection what kind of legislative protection should be introduced?

(d) When there is a dispute as to the religious status of a living or a dead person what are the determining factors and which court should have the jurisdiction to determine the religion of the living or a dead person?

The latest euphoria stemming from the ruling of a Syariah Court in Nyonya Tahir’s case (see NST 24 January 2006) cannot be taken as a sign that there is access to those courts bearing in mind, it is the Islamic religious department which made the application. This is crucial point. The non-Muslims statements were accepted because they could produce a document from the religious department itself saying the deceased had renounced Islam. That is all to it. Being a witness in a matter and gaining access and seeking remedy from a Syariah Court are two different things. One should not lose sight of this distinction.

Another pertinent point to note is: Why should a non-Muslim go to a Syariah Court, when the philosophy of that court begins with the proposition that their supreme law is the religious law of Islam instead of the Federal Constitution. Further, why would a non-Muslim go to Syariah Court, when he had by his act, conduct, did behave and had lived as a non-Muslim?

The abovementioned facts are common occurrences, and Article 121(1) read together with clause (1A) does not seem to provide any answer. The High Court judges seem inclined to lean heavily on clause (1A) and say they have no jurisdiction and the Syariah courts are operating as if their jurisdiction is capable of dealing with every dispute so long as one party is a Muslim and does not consider the rights of a non-Muslim. Since the non-Muslims cannot have access to the Syariah Court they are denied justice in both courts – the civil High Courts assuming wrongly that it has no jurisdiction, and the Syariah Courts assuming that they could deal with the rights of non-Muslims.

These are the problems that have had been coming before the High Courts from time to time and repeatedly the non-Muslim parties are left with no remedy at all.

CASE LAWS THAT SHOW THE PROBLEMS

At this stage it would be appropriate to look into the cases that had come before the High Courts and how they have been dealt with since the Article 121(1) was amended and (1A) inserted.

Dalip Kaur v Pegawai Polis Daerah[5] was one among the first few cases that came for High Court’s determination after the 1988 amendment. In that case Dalip Kaur claimed that her son Gurdev Singh was born a Sikh and brought up in the Sikh faith. On 1 June 1991 Gurdev converted to Islam before the District Kadi of Kulim. He died on 3 October 1991. Dalip Kaur, the mother, claimed the body of Gurdev saying that at the time of his death on 3 October 1991 he was not a Muslim and he had renounced the Islamic faith. It was also alleged that Gurdev had, by a deed poll on 9 September 1991, renounced the Islamic faith and resumed the practice of Sikh faith having been rebabtised by a Sikh priest at a Sikh temple. It was also said that Gurdev had continued to eat pork and that he had not been circumcised.

The learned Judicial Commissioner found that the signature on the deed poll was not that of the deceased’s and he also rejected the evidence of the Sikh priest and that of Gurdev’s brother relating his rebaptism to Sikhism. He held that Gurdev was a Muslim at the time of his death.

The first thing to observe here is that there was no challenge to jurisdiction of the High Court to hear the dispute. And all parties apparently proceeded on the basis that the High Court had jurisdiction to hear the case.

Dalip Kaur aggrieved by the decision appealed to the then Supreme Court. The Chief Justice of Malaya Hashim Yeop Sani, Supreme Court Judges Harun Hashim and Mohamed Yusoff heard the appeal. At the hearing of the appeal the Supreme Court remitted the case to the High Court for it to refer certain questions of Islamic law that arose in the case, to the fatwa committee under the Kedah Administration of Muslim law Enactment 1962, section 37. The High Court sat again on 26 October 1991 for the purpose of referring the questions. After receiving the fatwa from the fatwa committee the High Court sat on 28 October 1991 and confirmed its earlier finding and decision e.g. that Gurdev was a Muslim.

Touching on the deed poll, the Chief Justice of Malaya said that it “is crucial to determine whether the deceased (Gurdev) died a Muslim. The relevant part of the fatwa on this point states in effect that if a Muslim executes a deed poll renouncing Islam he becomes a ‘murtad’ (apostate).[6]

The learned Chief Justice after referring to matters relating to converts to Islam in the Kedah Enactment added there “is no provision in the Enactment for converts to leave Islam.[7]

Elaborating further, the learned Chief Justice pointed out that there was a provision for converts to leave Islam in section 146(2) of the Perak Enactment (The Administration of Muslim Law Enactment 1965) which was however repealed in 1975. The original provision in the Perak Enactment read:

“146(2): Semua orang Islam adalah terikat dengan undang-undang ini; dan sekiranya mana-mana orang keluar daripada Ugama Islam maka hendaklah ia menyatakan kepada Mahkamah akan keputusannya itu dan Mahkamah itu hendaklah mengisytiharkan perkara itu.”

( The English translation of this section is:

All persons of Islam are bound by these laws; and whenever a person leaves the religion of Islam he has to inform the Court of his decision and the Court shall declare on that matter.” )

Only the words emphasized remains after the repeal. Before the repeal any convert who wanted to leave Islam could have the matter certified by the Syariah Court.”[8]

The learned Chief of Justice was in error when he used the word “convert” when the provision under consideration does not use that term but had made its effect applicable to all persons of Islam.

The learned Chief Justice was correct in expressing the view that: “Clear provisions should be incorporated in all State enactments to avoid difficulties of interpretation by the civil courts. This is particularly important in view of the amendment to art. 121 of the Federal Constitution …. The new Clause 1A of art. 121 of the Constitution effective from 10 June 1988 has taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the Syariah Courts. But that clause does not take away the jurisdiction of the civil court to interpret any written laws of the States enacted for the administration of Muslim law.” (Emphasis supplied)

It is clear, therefore, that Article 121(1A) does not prevent the High Court in doing justice when State enactments are ambiguous and are enacted in violation of the guarantees enshrined in the Constitution.

In so far as converts leaving Islam is concerned the learned Chief Justice suggested that a clear “provision can for example be in the form of a provision imposing obligation on the relevant authorities to keep and maintain a register of converts who have executed a deed poll renouncing Islam.”

While this sounds an admirable innovation one cannot understand why it should be confined to converts, rather than, in general, applicable to those who have executed deed poll renouncing Islam.

Mohamed Yusoff, the Supreme Court Judge was of the view that the determination of the question whether a person was a Muslim or had renounced the faith of Islam before death, transgressed into the realm of Syariah Law which needs serious consideration and proper interpretation of the Syariah law.[9]

While the learned Judge favoured the Syariah Courts deciding the issue of renunciation of Islam he does not seem to have appreciated the fact that Dalip Kaur being a non-Muslim had no access to the Syariah courts. The learned judge, however, does not seem to adopt an interpretation that the High Courts have no jurisdiction in the circumstances of the case, eg. when a claim involved a non-Muslim.

The next case in which the new Article 121 (1A) was considered was Soon Singh v. Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Anor.[10] Soon Singh was born on 3 January 1971 to Sikh parents and was brought up as a Sikh. On 14 May 1988 he converted to Islam and changed his name to Satman bin Abdullah. The conversion was duly registered in accordance with section 139 of the Kedah Administration of Muslim Enactment, 1962. On 16 July 1992 he went through a baptism ceremony to reconvert to Sikhism at the Sikh temple. On 27 July 1992, he executed a deed poll renouncing the religion of Islam to revert to his original Sikh faith and to use his original Sikh name Soon Singh Bikar Singh. Soon Singh filed an application in the High court for a declaration that he is not a Muslim. In his affidavit in support of his application for the declaration, Soon Singh stated that he converted without the knowledge of his mother. His father had already died. At the date of his conversion Soon Singh was under eighteen years old.

The Jabatan Agama Islam, which was a party to the action, raised a preliminary objection stating the High Court had no jurisdiction to make the declaration prayed for and only the Syariah Court had such jurisdiction. The learned Judge upheld the objection and dismissed the application.

The learned judge touched on the position of a person converting to Islam under the Kedah Enactment and the question of Soon Singh being under the age of eighteen years at the time of conversion. He said, “Who can convert and whether a person below the age of 18 years must have the consent of his parents to convert or not are provided in the Enactment. The Muslim law in this respect though not provided in the Enactment must be followed. The fatwa that was issued by the fatwa committee was based on the Muslim law.”

The learned judge then went on to say that he found support in the judgment of Mohamed Yusof, the Supreme Court judge in Dalip’s case, referred above.

Having conceded that Soon Singh was under eighteen years old when he converted to Islam, the learned judge seems to have ignored two vital provisions. One is Article 12(4) of the Constitution; which says, the religion of a person under the age of eighteen years should be decided by his parent or guardian. It is, therefore clear, Soon Singh could not have been converted when he had not the capacity to decide on the issue of religion.[11]

The second is section 5 of the Guardianship Act 1961 which says that the parents shall have the right to decide on the matters relating children under eighteen years of age.

In the case of Teoh Eng Huat v. Pari Mas & Anor[12], the then Lord President Abdul Hamid delivering the judgment of the then Supreme Court held that, “in the wider interest of the nation, no infant shall have the automatic right to receive instruction relating to any religion other than his own without the permission of the parent or guardian. As the law applicable in this case (Teoh Eng Huat’s case), at the date of conversion to Islam was the civil law, the right of religious practice of the infant should therefore be exercised by the guardian or parent until the infant reaches the age of majority.”

The learned judge in Soon Singh’s case erred by not considering the lack of capacity of Soon Singh when he converted to Islam. Had he done so he could not have come to the conclusion he did, for the issue before him at that time was the capacity of Soon Singh to convert without the consent of his mother. The Syariah court which registered the conversion should have refused to register the conversion on Soon Singh’s incapacity itself. Thus, it could be seen, Syariah Court did not act within its jurisdiction and the Civil High Court had every right to deal with the issue because:

(a) the capacity to convert was in issue;

(b) Soon Singh renounced after he attained the age of majority;

(c) the lack of consent was itself primarily a Constitutional issue.

Here the learned judge gave literal interpretation to Article 12(1) and (1A) and obviously fell into error of not appreciating the actual purpose of the provisions in the amended form. Declining jurisdiction to consider the issues, which presented themselves, called for mature consideration and that was ignored.

So far we have been looking at cases where conversion had taken place and how the courts had dealt with them notwithstanding strong and clear indication from the Supreme Court that the amendments do not oust the jurisdiction of the High Court in cases involving the Islamic element. The Supreme Court was prepared to look into the merits of the case and that should have been accepted as a clear guideline to the High Court and not to abdicate from their constitutional duty.

We will now look at some of the cases where Syariah Courts have indiscriminately extended their jurisdiction in the matrimonial affairs and custody of children of non-Muslims and conversion of children under the age of eighteen.

There are many cases pending in Courts and we are confining our analysis’s to a few of cases where judgments or rulings have had been made by the High Court (s) affecting the rights of non-Muslim spouses.

The case where jurisdictional issue based on Article 121(1A) was raised is Genga Devi a/p Chelliah v. Santanam a/l Damodaram[13]. In that case Genga Devi and Santanam were married and the marriage was registered on 9 December 1987 and a marriage ceremony according to Hindu custom was had on 22 May 1988.

A child was born on 14 July 1990 and he was named Sanjev Vishnu. Rasamani Kandiah who was the lawyer acting for Genga Devi in this case in a paper intituled: “The Judiciary and Jurisdiction of the Courts” has given the chronology of events of what transpired during the matrimonial life of Genga Devi and Santanam.

Santanam who was already married to Genga Devi went through another marriage with one Mala in a Hindu Temple in 1990. Mala gave birth to a son in 1991. Santanam took both the children from their respective mothers in 1994. Genga sought the services of Legal Aid Bureau who managed to obtain the custody order in respect of Sanjev Vishnu from the High Court in 1994. Santanam who knew of the application by Genga Devi for Sanjev Vishnu’s custody did not appear. In 1995 Genga Devi obtained a Decree Nisi.

On 24 April 1997 the Syariah court made on order that Sanjev Vishnu was a Muslim and gave custody to Santanam who was also converted to Islam. Genga applied to the High Court that the Syariah Court order be revoked it being illegal, that the Syariah Court Order dated 24 April 1997 was ultra vires, that the said order be set aside and that Santanam do return Sanjev Vishnu to Genga Devi in accordance with the High Court’s order of 8 December 1994.

A preliminary objection was raised to the effect that the High Court has no jurisdiction by reason of Article 121 (1A) and that the proper court to decide on the status of the infant Sanjeev Vishnu would be the Syariah Court. The learned Judge upheld the objection and dismissed Genga Devi’s application.

If what had been narrated by Rasamani is correct, that is, Santanam had gone through a second marriage when a legally contracted marriage was subsisting, then, he had committed an offence of bigamy under section 494 of the Penal Code read together with Section 7 of the Law Reform (Marriage and Divorce) Act 1976.

The High Court order granting custody of Sanjev Vishnu to Genga Devi was dated 8 December 1994. The Syariah Court’s order giving custody of the two children to Santanam was on 24 April 1997 some two years after the High Court order dated 8 December 1994. What the Syariah Court did was in total violation of the order made by the High Court.

The other point, which calls for deliberation, is the status of the child by Mala, the second wife. Since the second marriage was bigamous the child born, unfortunately, is illegitimate, and in so far as illegitimate children is concerned the mother has absolute right to custody to the exclusion of the putative father.[14]

It is rather amazing, if not disturbing under what authority could the Syariah Court confer parental right on a putative father when the personal law of Mala governed by the civil law gives her absolute right of custody. This point was not raised before the High Court because Mala was not a party to the action brought by Genga Devi; but it is an issue, which the Syariah Court should not have ignored on a simple scrutiny of the two birth certificates of the two children, which would inevitably have carried the names of two different mothers who are non-Muslims.

The Syariah Court’s order would seem to have the effect of legalizing a bigamous marriage and grant custody to the putative father. One cannot ignore the father’s status before he converted to Islam. He was a Hindu and the law applicable was the civil law.

As far as Genga Devi’s case is concerned the High Court made the order on 8 December 1994 granting custody to her, a Hindu, when Sanjev Vishnu was a Hindu. The jurisdiction the High Court possessed was not vitiated by the subsequent order of the Syariah Court. The High Court should have enquired into all the circumstances that led to the Syariah Court making the order it made on 24 April 1997 and do justice.

By refusing to go into the merits of the case and making an order that justice of the case demanded, the High Court washed its hands leaving Genga Devi with no judicial remedy.

The next case is Shamala a/p Sathiyaseelan v. Dr. Jeyaganesh a/l C.Mogarajah[15] where the parties being Hindus married in 1998. There were two children of the marriage. Jeyaganesh converted to Islam on 19 November 2002 and the two children were similary converted to Islam on 25 November 2002 by him. These were done without the consent of Shamala. The marriage between the parties broke down. Shamala left Jeyaganesh with her children and went to live with her parents on 18 December 2002.

On 31 December 2002 Shamala filed an application in the High Court seeking an order for custody, care and control of her two children. The application was fixed for hearing on 16 January 2003. Jeyaganesh was served with the application on 14 January 2003.

When the matter came up for hearing Jeyaganesh sought an adjournment to engage the services of an advocate and solicitor and this was granted. The matter was then adjourned for hearing on 25 February 2003, on which date, Jeyaganesh’s solicitors applied and obtained another adjournment. The matter was then fixed for hearing on 17 March 2003.

While adjournment was being sought and obtained in the High Court, Jeyaganesh had, to use the words of the learned judge, “quietly through his solicitors filed on 7 January 2003 an application in the Syariah High Court for an ex-parte hadanah (custody) of the two children.”[16]

On 9 February 2003 the ex parte hadanah application was served on Shamala, which application was fixed for hearing on 7 March 2003. Shamala having failed to attend a warrant of arrest was issued against her by the Syariah Court.

On 17 April 2003 Shamala’s application for custody of the children came before Mr. Justice Faiza Tamby Chik who was of the opinion that the civil court has jurisdiction to hear the case in relation to their civil marriage. The fact that the husband Jeyaganesh has converted to Islam does not change the status of the said civil marriage.[17]

The learned judge held that Jeyaganesh by converting to Islam has committed a matrimonial offence which entitled Shamala to petition for divorce. The learned judge held that:

- Jeyaganesh’s conversion to Islam converts his marital status from one of monogamy to polygamy.[18]

- Jeyeganesh could not divorce but, his Hindu wife could, who remains a Hindu.[19]

- Jeyaganesh’s obligation under the Hindu marriage would not and could not be extinguished.[20]

- Jeyaganesh has to support his Hindu wife and the children of that marriage.[21]

The learned judge went on to explain that section 51 of the Law Reform (Marriage and Divorce) Act 1976 which entitles a spouse to petition for divorce when the other had converted to Islam uses the word “may” which means it is a discretion. According to the learned judge it does not make it mandatory on her part (or his part) to break away from her husband merely because he has changed his religion, but it gives her the option to join the Islamic religion with her husband or remain out of conversion.[22] This indeed must be a curious suggestion because it ignores the real situation.

Once a person has converted to Islam, especially a husband or wife, that religion would not countenance any conjugal relationship between a Muslim and non-Muslim. Therefore, the suggestion that section 51 of the Act of 1976 implies a discretion and by implication allows the relationship of a Muslim with a non-Muslim to continue must be considered as a unique proposition, which in some jurisdictions no doubt is tolerated, but in this country it cannot be said that spouse who had converted to Islam could maintain or preserve the marriage contracted with a non-Muslim prior to the conversion.

Although there seems to be some common sense and a modicum of religious tolerance in the interpretation by the learned judge but the realities in this country when conversion takes place a clear break with the past is favoured and encouraged.

On the jurisdictional issue the learned judge held that the High Court has jurisdiction to hear the dispute between the spouses over the custody of the children.[23] In regard to the custody order granted by the Syariah Court the learned judge held it was not binding on the non-Muslim, Shamala.[24]

The learned judge granted the order as prayed by Shamala. However, the learned judge went on to express something, which was irrelevant to the case except to demonstrate his allegiance to Islam. He says: “I am sure our Government would never, never do anything, anywhere and particularly in a legislation to derogate the Islamic religion because it knows that Islam is the State religion and we have the greatest respect for that religion to provide clarity, to show the juxtaposition of the two sets of religion which would provide two typestyle marriages in this country.”[25]

This statement actually not only clouds the real issue in the case before the learned judge, but also reveals the sort of feeling some judges may have when it comes to religion, especially Islam. While it is not suggested that this overt expression of religious expression of allegiance should be taken as a yardstick to measure the depth of religious sentiments that had seeped through the pores of the judiciary, it certainly sends wrong signals to the non-Muslims that there is an obvious preference to Islam to the exclusion of other religions. This, it is submitted, cannot be the result Parliament had intended, that is to say, judges of the civil courts should decline jurisdiction when the justice of the case demanded it, by invoking Article 121 (1A).

Shamala’s custody of the children action

The next stage of Shamala’s action was for a declaration from the High Court that the conversion of her two children, Saktishwaran aged four years old and Theiviswaran aged two years old, when they were minors to Islam without her consent was null and void.[26]

In this case too the jurisdictional objection was raised and this time the learned judge upheld the objection and dismissed Shamala’s application on the ground that the two children were Muslims and only the Syariah Court has the jurisdiction to hear the case. The manner in which the children were converted called for an enquiry and the court should have addressed it, but declined to do so.

The other point which the learned judge touched upon is the interpretation of the word “parent” appearing in Article 12(4) of the Constitution and section 5 of the Guardianship of Infants Act 1961 which gave equal rights to the parents. He also referred the Sabah case of Chang Ah Mee v. Jabatan Hal Ehwal Agama Islam[27] and began to distinguish between the words “parent” used in Article 12(4) of the Constitution and “parents” and in section 68 of the Sabah Administration of Islamic Law Enactment 1992. [28]

Faiza Thamby Chik, the learned judge, obviously erred in not referring Article 160(1) which says that the Interpretation and General Clauses Ordinance 1948 (now Interpretation Acts 1948 and 1967) are applicable in construing the Constitution.

Section 4(3) of the Acts of 1948 and 1967 says that: “words and expression in the singular include plural, and words and expressions in the plural include the singular.” Had this provision been brought to the notice of the learned judge he could not have come to the conclusion he actually arrived. This is an elementary law and the need to be referred is indeed unnecessary.

The next case is Nedunchelian v. Nurshafiqah Mah Shigi Anwal[29] where Neduncheliam, the husband of Nurshafiqah sought declaratory reliefs against his wife on the ground that conversion of the children of the marriage, who were infants at all material times to Islam was invalid and void.

Nursyafiqah raised a preliminary objection as to the jurisdiction of the High Court to hear the matter on the ground that Article 121(1A) of the Constitution, the matter could only be tried by the Syariah Court. The learned judge upheld the preliminary objection and the matter is still pending on appeal.

The latest case where the issue of conversion caught the attention not only of Malaysians but world at large is that of Moorthy. On Moorthy’s death the tussle began on the issue as to who has the right to the dead body.

Kaliamma was told by JAWI that her husband Moorthy had converted to Islam, which she denied. The Islamic Organisation obtained an order from the Syariah Court giving it the right to have the body and perform the funeral rights. Kaliamma brought an action in the High Court, which decided that the matter was within the exclusive jurisdiction of the Syariah Court.

Kaliamma has been left with no remedy.

What disturbs all fair-minded people is the fact that Kaliamma, Moorthy’s widow, had been denied judicial remedy. And the Syariah Court was prepared to exercise its jurisdiction on the application of a party who was not in any way related to the deceased. The High Court refuses to act on the basis of Article 121(1A) and the Syariah Court acts without any regard to the natural emotional strains of the widow, a non-Muslim.

The cases referred to above are only a scratch on the surface but the enormous problems faced by the non-Muslim communities in this country as a result of the amendment to Article 121(1) and of the Constitution and the insertion of Clause (1A) are real and indeed traumatising. Experiences had shown that the insertion of Clause (1A) has caused much serious problems that were never envisaged. Decision of the civil courts had clearly demonstrated the painful episodes that are occurring now and then, which, if not corrected could lead to shake the very foundation Malaysia was raised.

The numerous problems that can surface from time to time are noticeable from the cases that have been discussed in this essay. There are other areas, which could surface resulting from a spouse converting to Islam and subsequently renouncing it.

There is at the moment an appreciable recognition by all leaders in the light of the Moorthy’s episode, that there is a need to look into Article 121(1) and (1A) to see whether they could be cured to alleviate the hardship and the emotional turmoil non-Muslims are subjected to.

There must be clear provision on the issue of conversion of children under the age of eighteen. Either the parents or the legal guardian must consent to conversion of children under the age of eighteen. The Syariah Court should not accept conversion by one parent who had converted to Islam when the other party to the non-Muslim marriage is still living and that marriage is still subsisting. The Syariah Courts seem to be content that so long a parent is a Muslim the child is a Muslim taking after the father. What is being ignored is the fact that the parent was a non-Muslim when the child was born, and so long one of the parents remains non-Muslim his or her rights to the child’s religious upbringing is not vitiated.

Where the marriage between converted non-converted spouses subsists and neither party petition for divorce, both must be consulted and their consent obtained when the conversion of the children under the age of eighteen is accepted by the Syariah Court.

In so far as Article 121(1) is concerned it would be a prudent course to revert to its original position eg., the judicial power of the Federation shall be vested in the two High Courts with a proviso that where the parties are Muslims and the matter is within the jurisdiction of Syariah Court, the High Court shall have no jurisdiction. Where the matrimonial dispute is between a Muslim convert and a non-Muslim the High Courts should be seized with jurisdiction to deal with it.

The question whether a Muslim had renounced Islam should be dealt with by the High Courts and where the need arises those courts may seek the advice or opinion of the fatwa committee of the State on the matter. (See the decision in Dalip Kaur). This is being suggested in order to avoid the perception that Syariah Court would be biased and would not render justice.

The Law Reform (Marriage and Divorce) Act 1976 should be more specific when one spouse converts to Islam and the other remains a non-Muslim. In this context section 51 should include the following provision:

“Where one party to a marriage has converted to Islam and there are children of that marriage, and the other party, if still living, but had not converted to Islam, the converted party shall have no right to convert the children of the marriage to Islam unless the voluntary consent of the non-Muslim party had been obtained.”

The State Islamic Law Administrative Enactment should not enact any law inconsistent with Articles 11, 12 and 121 (1), of the Constitution, especially when the conversion of a person under the age of eighteen arises (See the case of Teoh Eng Huat). The consent of both parents should be a condition precedent before any conversion takes place.

The renouncing of any religion must be made simple and if a deed poll is executed and deposited with the High Court, which should be sufficient evidence that the deponent had renounced the faith he has been practising. A special register needs to be created in the High Court Registries. When a Muslim had renounced Islam, he is a Murtad (Apostate), no longer a believer, in such a situation how could a Syariah Court exercise any jurisdiction over him or her?

Where a spouse had converted to Islam during the subsistence of a marriage contracted when that spouse was a non-Muslim the spouse who has not converted should be immediately notified and Syariah Court should not take any step to invalidate that non-Muslim marriage or make any orders affecting the non-Muslim children.

Where a dispute arises as to the religious status of a deceased and the party claiming the body of the deceased is a non-Muslim the High Court must have jurisdiction to rule the religious status of the deceased.

Any amendment should be carefully considered and in this context the appointment of a Parliamentary Select Committee should be appropriate. And in order to do justice in those cases which are still pending disposal, the amendments should have retrospective effect. It is important that the appellate court should not delay cases where custody of children who have had been converted to Islam without the consent of the father or mother are on appeal. The delay in those matters could be interpreted as an act inconsistent with the judicial duties judges are enjoined to perform thus giving the impression non-Muslims have no judicial remedy at all. This perception should be avoided.

Judges must remember the oath they have taken when they were appointed as judges, they swore that they will discharge their judicial duties……to the best of their abilities and that they will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution. The very nature of their oaths requires them primarily to bear true faith and allegiance and contemporaneously preserve, protect and defend its Constitution. The judges by refusing to hear cases where there is an Islamic element involving a Muslim and a non-Muslim are indeed acting contrary to their oaths.

Since the judges have abdicated their responsibilities it is time Parliament remedy the situation and provide the means for non-Muslims to have some justice.



[1] [1908] 8. C.L.R 330

[2] Section 23 of the Courts of Judicature Act 1964

[3] (1992) 1 MLJ 1, Supreme Court (as it was then called)

[4] (1999) 1 MLJ 266, Court of Appeal, and (1999) 2 MLJ 241, Federal Court

[5] [1992] 1 MLJ 1

[6] Supra at p.6

[7] Supra at p.7

[8] ibid per Hashim Yeop Sani

[9] Supra at pg.9

[10] [1994] 1 MLJ 690

[11] Supra at 693

[12] [1990] 2 MLJ 300

[13] [2000]1 MLJ 526

[14] See the effect of Section 27 of the Civil Law Act 1956

[15] [2004] 2 MLJ 241

[16] Supra at pg. 249

[17] Supra at pg. 248

[18] Supra at pg. 252

[19] ibid

[20] ibid

[21] ibid

[22] Supra at pg. 252

[23] Supra at pg. 253

[24] Supra at pg 254 & 255

[25] Supra at pg. 253

[26] [2004] 2 MLJ 648

[27] [2003] 5 MLJ 106

[28] Ibid no. 22 at pg. 655

[29] [2005] 2 AMR 711