Monday, May 5, 2008

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.


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

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