by John Chung, GCF icommentary
Most of us should be quite familiar with the facts surrounding the recent Moorthy controversy, which revolved around an ugly tussle over the deceased Everest climber's body due to a dispute over his religious status. The High Court's refusal to hear the application of Moorthy's wife on the ground of lack of jurisdiction brought to the fore a very troubling issue — one of access to justice. Inconceivable
as it may be, it turns out that a person in such a position has nowhere to turn to and no access to justice, as the very doors of the courts are shut.
Moorthy's case is not the first of its kind; it was just the most widely publicised one in a series of similar cases involving the issue of conversion. Our civil courts have taken the view that they have no powers to hear any matter involving Islam, as such matters come under the purview of the Syariah Court.
Things were not always this way. Yes, it is true that Article 121(1A) of the Federal Constitution provides, among others, that the High Court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. But earlier court decisions interpreted this to mean that a matter must first be explicitly and
exclusively placed under the jurisdiction of the Syariah court in order for this provision to come into play. Therefore, when the matter had not been exclusively placed under the jurisdiction of the Syariah court, the civil courts still retained jurisdiction — even when the case contained elements pertaining to Islam.
However, the cases of Md Hakim Lee v Majlis Agama and Soon Singh v PERKIM gave rise to a narrow interpretation of Article 121(1A). In these cases, it was decided that the Syariah courts have the power to hear matters even where no express jurisdiction has been conferred.
This has led to the present trend, where the civil courts have been reluctant to hear cases involving issues which have the slightest relation to Islam.
A recent seminar entitled "Federal Constitution — Protection for All", jointly organised by the Bar Council and Article 11 (a coalition of NGOs including the Malaysian Consultative Council for Buddhism, Christianity, Hinduism and Sikhism), raised deep-seated concerns over the present deteriorating state of affairs. In case you wonder why the coalition is called Article 11, it's simply because Article 11 is the provision in the Constitution which guarantees freedom of religion.
More worryingly, panellists at the seminar pointed out that fundamental liberties enshrined in the Constitution (freedom of religion, for example) have been steadily eroded as a result of numerous amendments and alterations to the Constitution. These
amendments have effectively restricted our exercise of those fundamental liberties. Further, as a result, the secular status of the country is slowly being undermined and there is a very distinct possibility that if left unchecked, Malaysia may well turn into an Islamic State in the not too distant future!
Underlying Moorthy and other similar cases is a poignant tale of human tragedy and suffering, which we must not forget. Instead, we must look at these incidences against the backdrop of a larger context.
Unrecognised by many, an ideological shift has been gradually taking place in our country over the past few decades. The secular nature of our polity is increasingly being subverted by growing Islamic influence, as can be seen by Islam Hadhari being made an operative principle of governance.
In light of this, we must make an effort to uphold and reiterate the supremacy of our Federal Constitution as the highest law of our land, as a matter of practice and not just in theory. The Constitution guarantees in writing our fundamental liberties, including freedom of religion, which in essence are our God-given rights. It is also by virtue of this same document that our governing authorities derive
their powers and their decisions must always fall in line with the provisions of the Constitution. In short, the Constitution is our safeguard.
From the Christian viewpoint, law is rooted in God's unchangeable character and provides the foundation for government. Thus, the ideals of justice, freedom and equality must be reflected in governance.
As Christians who seek to be conscientious citizens, we need to express our concern at what is happening and show a greater degree of involvement in the public square, both individually and collectively, so that we may be effective salt and light for Christ. Let's make our voices heard by endorsing the petition initiated by Article 11 and the Bar Council to reaffirm the supremacy of our Federal Constitution. The
petition is online
Most of us should be quite familiar with the facts surrounding the recent Moorthy controversy, which revolved around an ugly tussle over the deceased Everest climber's body due to a dispute over his religious status. The High Court's refusal to hear the application of Moorthy's wife on the ground of lack of jurisdiction brought to the fore a very troubling issue — one of access to justice. Inconceivableas it may be, it turns out that a person in such a position has nowhere to turn to and no access to justice, as the very doors of the courts are shut.
Moorthy's case is not the first of its kind; it was just the most widely publicised one in a series of similar cases involving the issue of conversion. Our civil courts have taken the view that they have no powers to hear any matter involving Islam, as such matters come under the purview of the Syariah Court.
Things were not always this way. Yes, it is true that Article 121(1A) of the Federal Constitution provides, among others, that the High Court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. But earlier court decisions interpreted this to mean that a matter must first be explicitly and
exclusively placed under the jurisdiction of the Syariah court in order for this provision to come into play. Therefore, when the matter had not been exclusively placed under the jurisdiction of the Syariah court, the civil courts still retained jurisdiction — even when the case contained elements pertaining to Islam.
However, the cases of Md Hakim Lee v Majlis Agama and Soon Singh v PERKIM gave rise to a narrow interpretation of Article 121(1A). In these cases, it was decided that the Syariah courts have the power to hear matters even where no express jurisdiction has been conferred.
This has led to the present trend, where the civil courts have been reluctant to hear cases involving issues which have the slightest relation to Islam.
A recent seminar entitled "Federal Constitution — Protection for All", jointly organised by the Bar Council and Article 11 (a coalition of NGOs including the Malaysian Consultative Council for Buddhism, Christianity, Hinduism and Sikhism), raised deep-seated concerns over the present deteriorating state of affairs. In case you wonder why the coalition is called Article 11, it's simply because Article 11 is the provision in the Constitution which guarantees freedom of religion.
More worryingly, panellists at the seminar pointed out that fundamental liberties enshrined in the Constitution (freedom of religion, for example) have been steadily eroded as a result of numerous amendments and alterations to the Constitution. These
amendments have effectively restricted our exercise of those fundamental liberties. Further, as a result, the secular status of the country is slowly being undermined and there is a very distinct possibility that if left unchecked, Malaysia may well turn into an Islamic State in the not too distant future!
Underlying Moorthy and other similar cases is a poignant tale of human tragedy and suffering, which we must not forget. Instead, we must look at these incidences against the backdrop of a larger context.
Unrecognised by many, an ideological shift has been gradually taking place in our country over the past few decades. The secular nature of our polity is increasingly being subverted by growing Islamic influence, as can be seen by Islam Hadhari being made an operative principle of governance.
In light of this, we must make an effort to uphold and reiterate the supremacy of our Federal Constitution as the highest law of our land, as a matter of practice and not just in theory. The Constitution guarantees in writing our fundamental liberties, including freedom of religion, which in essence are our God-given rights. It is also by virtue of this same document that our governing authorities derivetheir powers and their decisions must always fall in line with the provisions of the Constitution. In short, the Constitution is our safeguard.
From the Christian viewpoint, law is rooted in God's unchangeable character and provides the foundation for government. Thus, the ideals of justice, freedom and equality must be reflected in governance.
As Christians who seek to be conscientious citizens, we need to express our concern at what is happening and show a greater degree of involvement in the public square, both individually and collectively, so that we may be effective salt and light for Christ. Let's make our voices heard by endorsing the petition initiated by Article 11 and the Bar Council to reaffirm the supremacy of our Federal Constitution. The
petition is online
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