Sunday January 15, 2006
Point Of View: With TUN HANIF OMAR
MALAYSIANS have been riveted to a number of local happenings and newspaper reports in recent days and weeks.
Other than the issue of nude ear-squat searches, which should grip everyone’s interest again when the Tun Dzaiddin Commission submits its report to the King and the Prime Minister tomorrow, the other issues which are still hotly debated by diverse groups are the Moorthy conversion case and the Islamic Family Law (Federal Territories) (Amendment) Act, 2005.
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HOTLY DEBATED: Moorthy was buried as a Muslim after a High Court ruling but many questions remain.
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As a side-show, we also have the Dr Elie Youssef Najem saga that is still unfolding but which does not carry the potential of the same degree of distress to Malaysians as a whole as the Moorthy and Islamic Family Law cases.
Everybody I know seems to know, more or less, the circumstances of the Moorthy case. It would have been a tragically sensitive issue but for the sensibilities of all of us, particularly those directly involved.
We must not look at this as a Muslim versus non-Muslim issue lest we make the same mistake that many made of treating the nude ear-squat issue as being an anti-Chinese prejudice.
It is merely a question of the proper interpretation of Art 121(1A) of the Federal Constitution which came in by way of constitutional amendment in 1988.
The Government had found it necessary to bring about the amendment to prevent the civil courts from reviewing and overturning the decisions of the Syariah courts. Several such cases had taken place, giving the impression that the Syariah courts were subordinate to the civil courts which, it was believed, could not be the case because the civil courts fall within the First List (Federal responsibilities) of the Ninth Schedule of the Federal Constitution and the Syariah courts within the Second List (State responsibilities). The latter do not even come under the Third List which is the Concurrent List.
Thus a new Article 121(1A) was inserted into the Federal Constitution in 1988 to make the position clear and it reads, “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”
The courts referred to in Clause (1) are the two High Courts of Malaya and of Sabah and Sarawak, and their inferior courts.
Based on this Article, the High Court (Civil) is understood to have refused to review the finding of the syariah authority that Moorthy had in fact converted to Islam on the basis that this was such a matter as envisaged by Art 121(1A) to be “ within the jurisdiction of the Syariah courts”.
My own understanding gleaned unofficially and indirectly is that the Jabatan Agama Islam had the documentary proof of this conversion but Moorthy’s widow, S. Kaliammal, disputed the conversion because Moorthy had not informed her of his alleged conversion and that he had continued to live with her and their family as a practising Hindu.
Moorthy’s brother, who is a Muslim convert, himself did not know of Moorthy’s alleged conversion.
At risk were the family’s inheritance of Moorthy’s properties, pensions, etc, not forgetting, from their viewpoint, the good name of both deceased and his family within the Hindu community.
As a result, Moorthy was buried as a Muslim and the widow is appealing further for a review of the High Court decision.
Talking to someone who sat in over the introduction of Art 121(1A), I thought that he was of the opinion that the amendment was meant to make clear that the civil courts had no power to impose themselves on the Syariah courts on matters which were strictly within the sole prerogative of the Syariah courts.
But, it should not have been read to exclude the right of the civil courts to determine whether any matter is rightly such a matter within the jurisdiction of the Syariah courts.
The process of determining whether the matter is such a matter that will exclude the civil courts from adjudicating is not an exercise of jurisdiction over a non-jurisdictional matter.
If it is determined to be a matter within the (sole) jurisdiction of the Syariah courts, then the civil court must desist from hearing it.
If Moorthy was proved to be a Muslim, the civil court would have no jurisdiction but the court had the power to call for evidence to determine whether he was in fact a Muslim. To abdicate this function would, I agree, leave aggrieved parties like Kaliammal without redress.
It has been suggested that they could take their case to the Syariah court but such court has no jurisdiction over non-Muslims.
This is spelt out in Clause 1 of the Second List (State responsibilities) of the Ninth Schedule of the Federal Constitution, “? Syariah courts which shall have jurisdiction only over persons professing the religion of Islam ?”
But what about Clause 4 (k) of the First List (Federal responsibilities) which gives the civil court the power and function over the “ascertainment of Islamic Law and other personal laws for purposes of federal law …”?
I think this is perhaps the limb on which a number of legal practitioners and academicians have stood in their claim that the High Court could have been less restrictive in its interpretation of Art 121(1A) of our Constitution.
Do not pass in haste and repent at leisure
ON the Islamic Family Law (Federal Territories) (Amendment) Act, 2005, I had watched with dismay the seeming haste of the government pushing through the Bill.
Except in emergency matters, we should not pass a law when we ourselves are willing to concede that there could be flaws only because we want to standardise our laws early and that any flaws can be amended later.
People have no reason to be reassured by this. Let us do it well the first time. It doesn’t mean that everybody’s view must be accepted because I am sure many views are contradictory. But, why not publish the draft Bill for the public to see, read and understand, and to make suggestions thereon.
That would be the clearest exposition of what the Government has in mind, on which the public can make concrete suggestions. Maybe the Bill is available to the public at the Government Printers, the bookshops or on Parliament’s website. Make it known clearly and give the public a chance to consult. Do not pass in haste and repent at leisure.
In public discussions following the passage of this Bill, there were misgivings over principally two issues – the right of a husband to his wife’s property made during the subsistence of the marriage, and the facilitation of polygamy.
The first needs to be properly explained. As a man I feel ashamed that a husband would want, as a matter of right, a share in the wife’s property. But it is the practice under Western civil law and is regarded to be equitable.
As for polygamy, I have never felt like many Muslim men that it is a right to marry up to four provided it is just (equal number of days with each wife does not necessarily mean equal amount of solace!) and necessary.
Now many women are up in arms because the new Act has substituted the conjunction “and” with “or” which means a Muslim man can take another wife either because it is just or because it is necessary. He has to justify only one of the two conditions and not both, and women activists consider this to be retrogressive.
Muslims must read Surah An Nisaa (The Women), the 4th Surah, line 3 and ponder over the juxtaposition of polygamy with the orphans and justice for the orphans! What does this mean? Why have most Muslim ulama not touched on this, let alone expound on it?
Polygamy to my mind is not a right but a duty, under circumstances that can do justice to the orphans. The Surah was revealed in the wake of the Battle of Uhud which the Muslims lost and which left so many Muslim companions dead, their wives widowed, the children orphaned.
But where marrying more than one will do justice to the orphans, how many you should actually marry, not more than four, must depend on whether you can do justice to the orphans and wives. If you cannot do justice to the multiple wives and orphans, then you must marry only one.
How this line can become permissive of the polygamy of right, as understood by many Muslims here, really beats me. I do not hear them address the question of the orphans and the widows in the interpretation of this line of the 4th Surah!
Related Stories:
Clearing the air on conversions
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