Tuesday, February 28, 2006

Article I21 (1A): Non Muslim’s fear is unfounded

Article I21 (1A): Non Muslim’s fear is unfounded

By : Mohamed Hanipa Maidin

Prior to the amendment of Article 121 (1A ) in 1988 the finality of shariah court’s decisions remained uncertain. There were plethora of decided cases showing how the civil courts had successfully set aside various judgments of the shariah courts despite the fact the cases dealt with Islamic law and the parties or litigants were muslim.

In so doing the civil courts’ judges, in spite of not being well versed in Islamic law, had usurped the power of shariah court as if the muslim’s rights of practicing his own religion had no constitutional value.
Needless to say Article 11 ( 1 ) of the Federal Constitution ( FC ) guarantees anyone including muslims their fundamental rights to practice their own religion and by virtue of Article 3 ( 1 ) of the FC which places Islam as the religion of Federation such basic rights ought to be protected at all cost. Practising religion includes determination of muslims’ religious rights and duties , in the event dispute arises, by a competent forum i.e shariah court in accordance with Islamic law.
By the insertion of Article 121 (1A ) in the Federal Constitution the jurisdiction of civil courts and syariah courts has been clearly demarcated thus avoiding the clash of jurisdictions.
In Soon Singh al Bikar Singh v PERKIM Kedah & Anor (1999) 1 MLJ 489 the Apex court of this country followed the decision of Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor (1992) 1 MLJ 1 ( another Federal Court’ s decision) and held inter alia that the appellant’s application for a declaration that he was no longer a Muslim came within the jurisdiction of the Syariah Court and not that of the High Court.
It is interesting to note that notwithstanding the absence of any express provision dealing with conversion out of Islam ( apostacy ) in the State Enactment the Federal Court in Soon Singh ( supra ) still held that Syariah court has the jurisdiction to deal with matters concerning conversion out Islam.
The Federal Court in Soon Singh also followed the decision of the then Supreme Court in Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib ( 1992 ) 2 MLJ 793 which held that the intention of Parliament by art 121 (1A) of the Constitution was to take away the jurisdiction of the High Courts in respect of any matter within the jurisdictions of the Syariah Court.
All those above cited cases might have been decided differently if Article 121 ( 1 A ) was not in existence. It goes without saying that Article 121 (1A ) really gives life to shariah courts.
It is a common knowledge that the Muslims in Malaysia are still legally and practically barred from practising the whole teachings of their own religion as enjoined by Al-Quran and Al-Sunnah. The jurisdiction of Shariah court is still narrow and limited to matters enlisted in the Ninth Schedule of the FC which basically deal with family law ( al-akhwal shaksiyyah ). Why is that so is a matter of history and the muslims have to ask UMNO leaders the reasons why are they hitherto denied their religious rights to practice Islam as al-deen ( a way of life ).
Despite such limited jurisdiction we still hear irresponsible voices asking such limited jurisdiction to be further eroded or abolished at all by amending Art 121 (1A). It is further aggravated by the thoughtless demands of 9 non Muslim Ministers contained in their memorandum to the Prime Minister.
Their concerns as reported in the newspaper were that if Article 121 ( 1A ) is not amended the rights of non muslim would be jeopardized and how such baseless conclusion is arrived at is not very clear. For a start Article 121 (1A ) deals with Islam and muslims only thus any anxiety of the non muslims that such privision would prejudice their rights is a non starter or non issue at all. The non muslims’ fears are therefore not only unreal but also unfounded. In fact , on the contrary the muslims are those would be severely prejudiced if Article 121 ( 1A ) is amended as it pertains to their rights of practicing their own religion enshrined in Article 11 ( 1 ) of the Federal Constitution.

If at all the Mohamad Abdullah Moorthy’s case was perceived as a threat to the non Muslim’s rights as the Shariah court could make an ex parte decision even though the matter indirectly involved his wife’s rights as a non muslim such perception should not be taken as a valid ground for the amendment of Article 121 ( 1A ).
After all not all cases, either in civil or shariah courts , were free from flaws and inaccuracies . The weakness of shariah court ‘s decision in Moorthy’s case , if any, could still be remedied in future without any legislative interference or constitutional amendment of Article 121 ( 1A ).
In fact if the shariah court’s judges , with the help of sharie lawyers, are aware of their inherent powers and duties to establish justice to all based on the principles of shariah, they may in future, even in this type of case, decide it differently or in a more fair and just manner so that justice is not only done but seen to be done.
There is nothing which prohibits shariah judges from resorting to the original sources of Islamic laws and applying them if there is a lacunae ( loophole ) in the present Enactments of the Administrations of Islamic Law particularly as regard to the absence of express provision of non muslims being given their rights to be heard in shariah court. But a caveat needs to be entered here i.e regardless of the litigants’ background appearing in shariah court the law that shall be applied here must be Islamic law alone.
The fact that the memorandum was withdrawn on the advice of the PM yet the matters can still be discussed in the Cabinet indicates that they are far from being closed. It was the memorandum which was withdrawn not the contents. The latter are still much alive. Even though the cabinet has the rights to discuss this issue it has also a corresponding duty not to discuss something which is so clear and considered trite and closed i.e Article 121 (1A) has nothing to do with the non muslims. Period.

In fact what the cabinet must discuss is that why the non muslims Ministers who took part in handing over the memorandum to the PM should not be penalised for raising something in an unconventional way . Like it or not it is their shallow understanding of the history and the Federal Cosntitution coupled with their irresponsible act that turned the issues from bad to worse. How serious Abdullah tackles and resolves this issue is to be judged inter alia by his fearless and stern action against these 9 ‘ trouble makers”.

Thursday, February 23, 2006


Utusan Malaysia today reports that “ Seorang pengarah akaun sebuah hotel bertaraf lima bintang di ibu negara kecewa apabila terpaksa melepaskan jawatan yang dipegangnya sejak lebih 10 tahun lalu semata-mata kerana memakai tudung. Habsah Jaafar, 46, mendakwa beliau terpaksa berbuat demikian setelah diberi kata dua oleh pengurusan hotel terbabit sama ada mematuhi peraturan yang melarang pemakaian tudung ketika bekerja atau melepaskan jawatannya”.

Puan Habsah further said in her press statement that :-

``Mereka (pengurusan hotel) bimbang jika saya datang kerja dengan bertudung, ia akan mempengaruhi pekerja-pekerja lain untuk berbuat demikian,'' katanya pada sidang akhbar di Ibu pejabat Pergerakan Pemuda UMNO di sini, hari ini.

According to her the issue emerged for the first time when she had asked for a leave to go for a hajj on last December. As a result of that decision she was then called by her employer and given an ultimatum either to uncover her aurat or leave her job for good.

This is what she said as quoted by Utusan :-

“ Sebagai orang Islam, bila mereka suruh saya buka tudung, saya rasa seolah-olah mereka suruh saya berbogel,'' katanya yang sudah lebih 20 tahun berkecimpung dalam bidang perhotelan.”

Presumably the actual facts are as stated in the said report this is my legal advice to her and anyone facing such predicament.

What had been done to this lady was against Article 11 ( 1 ) of the Federal Constitution ( FC ) which provides a person a right to profess and practice his/her religion. In her case her religion is definitely Islam. Wearing tudung ( part of covering "aurat ) is part and parcel of professing and practising her religion and in Islam observing such aurat is mandatory. Be that as it may such fundamental right cannot be restricted let alone denied even during an emergency [ see the case of Jamaluddin bin Othman v Menteri Dalam Negeri ] .

What her employer did to this pity yet bravest woman was unconstitutional as it had made her fundamental rights of practising her religion enshrined under Article 11 ( 1 ) ineffective and illusory. If she has the right to practice her religion the employer on the other hand owes her a duty to honour and observe such right and the latter by refusing to honour such right had clearly breached that sacred duty . The employer is therefore liable in tort.

The court of appeal in the case of Fatimah Sihi & 2 Ors v Meor Atiqulrahman ( the case is now pending in Federal court ) held that practising one's religion means practising an integral or essential part of such religion. As wearing tudung is mandatory and becomes an integral or essential part of her religion she could not be given an ultimatum by her arrogant employer i.e either wearing tudung or leaving the job. Consequently her dismissal was invalid and unconstitutional. She is therefore entitled to be reinstated to her job and in turn be compensated with damages vis-a vis her right of wearing tudung remains intact.

Apart from Article 11 ( 1 ) of the FC , her employer’s conduct also attracts Article 5 ( 1 ) of the FC which provides that “ no one shall be deprived his/her life and liberty save in accordace with law”. By asking her to leave her employment the employer in actual fact had deprived her liberty and life not in accordance with law. It is interesting to note the court in one case decided that the word “life” in Article 5 ( 1 ) includes one’s right of employment. Clearly her right to life was deprived not in accordance with law and the law in this case refers to Art 11 ( 1 ) of the FC.

Alas, in my view, she needs a lawyer rather than UMNO ! Doesn't she ?