Upholding our secular constitution

We engage two legal minds -senior lawyer Haris Ibrahim and Syariah Lawyers Association president Muhamad Burok -on the issue of conversions and the rights of all citizens. Haris Ibrahim began the interview by asking JACQUELINE ANN SURIN if she had read the Quran, then promptly handed over a translated copy. Haris, who has been involved in several high-profile cases related to freedom of religion, shares his views on the recent cases of conversions in and out of Islam.

theSun: What do you think are the core issues that have emerged from the high-profile cases of Shamala Sathiyaseelan [who failed in her attempt to seek redress from the civil court for her two young children's conversion to Islam by her estranged and Muslim-convert husband without her consent], Lina Joy [who converted out of Islam and wants her religion changed in her I.C.], the four apostates from the east coast including Kamariah Ali and Daud Mamat [who are followers of Ayah Pin], and M. Moorthy's widow S. Kaliammal [who unsuccessfully tried to contest her husband's conversion to Islam after his death and to lay claim to his body]?

Haris: Firstly, I think you mustn't look at these cases in isolation. We've got to also see them in the context of what's been happening for some time now. But looking at these cases, looking at the context in which they've taken place, some real, pertinent questions arise.

One, do we still have at our disposal the way of life that was guaranteed under the Constitution? And if not, to what extent has that way of life been displaced by this clamour that this is now an Islamic state?

I think we must also ask the question [pauses], where have the custodians of the Constitution - to wit the judges - been whilst this has unfolded. I think the real issue that confronts civil society if we want the way of life guaranteed [to us] back [is], what must we do? I think these are the issues.

[Sergeant] Moorthy's case and Shamala's case bring to the fore that the syariah courts and syariah law have been elevated to a status that was never intended by the framers of our Constitution.

We have a Federal Court decision of 1988 which considered Article 3 of the Federal Constitution and emphatically declared that this is a secular nation. In truth, I think what has happened is, we have witnessed the self-emasculation by our civil court judges in giving sway to the syariah courts and syariah law.

Why do you think this has happened?

It's a good question. Former Attorney General [Tan Sri Abu Talib Othman who is currently Human Rights Commission Malaysia or Suhakam chairman] says they lack courage. Professor [Dr] Shad [Saleem Faruqi, professor of law and legal advisor at Universiti Teknologi Mara, Shah Alam] has also offered a view that this phenomenon involves a - these are his own words - a 'silent re-writing' of the Constitution.

If it's lack of courage, then it's nothing more than an abdication of their oath of office. Their oath of office is to defend and uphold the Constitution.

But, if you take the suggestion of 'silent re-writing', one has to ask the question whether this self-emasculation is a willing participation.

A willing participation?

A willing participation by the judiciary to take us from the secular state that the Federal Constitution guarantees to this declaration of an Islamic state that our former Prime Minister [Tun Dr Mahathir Mohamad] left us with and some Members of Parliament are clamouring for.

The silent re-writing that Prof [Shad] talks about actually emerges in two decisions of the Federal Court - Soon Singh in 1999 and the case of Shaik Zolkaffily [in 2003] where what the judges embarked upon was nothing short of judicial legislation. Judges were making law in the conferment of jurisdiction to the syariah courts.

What were those two cases about, briefly?

Soon Singh pertained to the conversion of a minor Punjabi boy who, on majority, wished to revert to his original faith. And he had made [an] application for declaration to the civil court that he was no longer a Muslim.

The High Court took a jurisdictional point that that question had to be answered by the syariah court. It went up on appeal to the Federal Court, and the Federal Court went on this basis that although jurisdiction had not been placed with the syariah court to deal with conversions out of [Islam], you could imply jurisdiction from jurisdiction conferred on the syariah court to deal with conversion into [Islam]. If you embrace Islam, that jurisdiction is with the syariah courts. Therefore, you can imply jurisdiction to deal with conversion out of.

There was a fundamental flaw. Jurisdiction to deal with conversion into Islam was never placed with the syariah courts! It was with the Majlis Agama. Again, what one witnesses is a breakdown in the separation of powers. Legislation is for Parliament and State Legislature. The Federal Court saw it fit to imply a jurisdiction which really is the function of the legislature.

[The case of] Shaik Zolkafilly took it one step further. The Federal Court in Shaik Zolkafilly endorsed Soon Singh and then also endorsed a previous High Court ruling which went so far as to say that jurisdiction, although not expressly conferred on the syariah court, could be inferred from the 9th Schedule of the Federal Constitution.

Now, the 9th Schedule actually confers legislative powers on the various state legislative assemblies. If the state legislative assemblies have chosen not to exercise the powers, they haven't legislated. But the Federal Court is now saying, 'Right, you haven't legislated to confer jurisdiction, we can infer!' That is an usurpation of [the] role of the state legislature.

When one looks at these two decisions, one begins to wonder whether it's just plain abdication of duty due to lack of courage, or whether we have a situation of real concern that the judiciary may also be taking us to a position where the [way of] life guaranteed under the Federal Constitution is no longer open to us. In short, are they taking us to an Islamic state?

If the Federal Court is the highest court of the land, what happens then?

Well, let's take Moorthy's case. You can't contest it [because it's the highest court].

And Moorthy's case, to me, is a glaring example. In Shaik Zolkafilly 2003, [the] Federal Court said, 'Well, if you don't have a remedy, that's not for us to address.' Ignoring that some 15 years before that, [the] Federal Court in New Zealand Insurance had asserted that in our jurisdiction, you cannot separate the right from the remedy. Where you have a right, the system must afford a remedy.

That point was taken up by senior federal counsel [Mohd Nasir Isa] in the Moorthy case and was asserted emphatically again and again as the foundation for essentially telling the civil High Court, 'It's not your business to look into Kaliammal's complaint.'

Now, where do we go from there? The senior federal counsel has amply demonstrated it. The Attorney General's office doesn't appear to be perturbed that in the light of the Shaik Zolkafilly decision, we may have reached a point where the citizen may have no remedy whilst she may have a right. Shamala faced the same predicament. Her right under Article 12(4) under the Federal Constitution to partake in the decision-making as to the minor children's faith was taken away because the High Court says it cannot help her.

Kaliammal in the Moorthy case, my reading of it, was this: The right to bury your dead is part and parcel of the right of life guaranteed under Article 5.

If you read some of the pronouncements, 'right to life' is all-encompassing. The Federal Constitution cannot spell out the nitty-gritty details of what 'right to life' envisages. But surely, the right of a grieving family to perform the final rites of a recently deceased family member must be part and parcel of that. They were denied that.

The only premise of the civil High Court was, well, 'There was a syariah court order here, we cannot look behind it.'

We've come a long way. Civil society has to ask why and if we are prepared to put up with this, and if we are not, then what must we do. If we want the way of life that was guaranteed to us back, what must we do? I think these are the core issues that really emerged from these cases.

Again, look at the context. We have an MP saying, 'If you are not happy that this is an Islamic country, get out!' That's an indication as to the mindset in Parliament. You have the Attorney-General in the case of the four apostates in the Federal Court in 2004 arguing and suggesting that Article 3 of the Federal Constitution exalts Islam, to a state that was never intended. And that [the Federal Constitution never intended to raise Islamic law above civil law] is borne out by the Federal Court decision of 1988 where they said, notwithstanding all of that - [i.e.] Article 3 - [that] this is a secular state.

One has to look at all these and ask ourselves, 'Why? Why are we witnessing these various phenomena?' And if you are not happy, then [pauses] speak up, or forever hold your peace-lah.

Do you think a lot of it was due to our former prime minister saying that this is an Islamic state?

I don't think so. I think the former prime minister's declaration was pure political rhetoric to deal with a problem that he faced then. But, he's left us with that problem. And, there are parties who have seized on that rhetoric and are bent on making capital out of it. And, I suppose if you keep repeating if often enough, then people tend to forget.

What are some of the cases you've taken on that have the same core issues?

Well, all of the cases you've mentioned except for Shaik Zolkafilly and Soon Singh, I've been involved in one way or the other.

Lina Joy at the Court of Appeal, co-watching brief counsel. For the four apostates, at every stage, I've been solicitor and counsel. The Moorthy case, I was holding watching brief for the Bar Council. Shamala's case, I was holding watching brief for the women NGOs [non-governmental organisations]. So, yes, I've been involved in all of them in one way or the other. I'm presently also involved with cases filed last year in the High Court of KL or Shah Alam where the respondent is the director of the I.C. [identity card] Department. This is for change of I.C. particulars to delete Islam for individuals who have, of their own free will, renounced [Islam] and embraced other faiths, and who now face difficulty in getting on with their lives simply because the details in the I.C. do not conform with their current state. These are cases which are pending.

These cases have all come up in the past few years. Is there a reason for that?

Well, there may be another reason for this [apart from the earlier mentioned ones]. I know of cases before 1995 where individuals who had renounced Islam, embraced a new faith, who had become born-again Christians, who were allowed to have their particulars changed. They had to go through a certain procedure but at the end of the day, they successfully got their particulars changed.

The refusal to allow this now appears to be fairly recent.

Fairly recent would be ... ?

Post-1995. Whether this coincidentally occurred when there appears to be this renewed Islamisation is speculation. But one must ask whether this may be another factor why previously, you didn't have to go to court. Today, you are being refused what was allowed previously. So, you see more of these cases in court today.

The Moorthy problem may not be a new problem. But it was resolved previously taking into consideration the plight of a grieving family. But not this time round. Hence, it was in court. Shamala's case [too] may not be in effect something new.

But, it's only recently that you run up against Islamic bureaucracy and the assertion that the syariah court must be the final arbiter in these issues. That could be another reason why we are seeing more and more of these cases.

What do you say to Muslims who may accuse you as being somebody who's helping the ummah convert out of their religion?

My answer to them is read Surah Nisa verse 75, that's Chapter 4 verse 75 [flips through a translated copy of the Quran]. Yes, this is how it reads: 'How should you not fight for the cause of God and of the feeble among men and of the women and the children who are crying: Lord! Bring us forth from out of this town of which the people are oppressors! Oh, give us from Thy presence some protecting friend! Oh, give us from Thy presence some defender!'

I don't think [the] Lord God was saying, 'Only defend Muslims.' [But] defend anyone who faces oppression.

The Quran also says in Baqarah:256, which is Chapter 2, verse 256, 'Let there be no compulsion in ad-deen' which is 'way of life'. Most translators translate it as 'religion'. I can live with that translation but it means then, 'Let there be no compulsion in religion.'

In Surah 10 verse 99, God says if He wanted to, He would have compelled everyone to the way that He desired. Will you then compel men against their wishes?

I'm no scholar of Islam, but in my humble understanding of these verses, we are not to stand by and ignore anyone, Muslim or non-Muslim, who's oppressed. I, therefore, think the cases that I handle are perfectly in conformity with my obligation as one who tries to be Muslim. I do not claim to be Muslim, I try to be Muslim.

As a Muslim and a lawyer, what do you think the state needs to do to ensure that this right of freedom of religion is upheld?

As a Muslim, I would urge our Muslim leaders to look again into the Quran. There is a verse where Moses was dispatched to [the] Pharaoh and the message was very clear: 'Free the people. Free the people.'

As a lawyer, I've got to say that Quranic message can be achieved if our leaders would keep to their oath of office and uphold the Constitution. Uphold the Constitution to the letter and the spirit.

Some of these cases have come about because of conversions to Islam by one party in a relationship. What needs to be done to ensure that these conversions to Islam don't lead to the negation of rights for the non-Muslim party?

Let's be honest about this. Conversions have taken place because somebody wants to take a second spouse and they see it as a means to achieve that end. That means that conversion is not real.

We've heard of conversions simply because individuals want to acquire bumiputra status to advance themselves in their own business. Again, conversion is not real. I truly believe that if someone has come to Islam because they have seen the beauty of Islam, they will not lose sight of the responsibilities that remain with them for their non-Muslim family. You don't love your non-Muslim wife any the less simply because you have seen the truth in Islam. Your non-Muslim children do not mean any less to you today simply because you are a Muslim today while you were a Buddhist yesterday.

So, number one, I think the authorities involved with conversions must not pretend that these pseudo-converts or pseudo-Muslims are not a reality. They must confront this.

And, maybe to avoid the calamity that often befalls the non-Muslim family, there must be prescription in the law that places the duty on these converting authorities to ensure that the non-Muslim family is fully apprised [of the conversion] so that they are not confronted only when they are about to bury [the deceased], that perhaps the family home which the wife rather naively left in the husband's name, is now the property of the Baitulmal [a state agency which is responsible for disbursing monies to Muslims who need financial support].

We've seen the case in Malacca where the fireman died and the property then falls to [the] Baitulmal. No family should be left to the mercy of strangers, who now, out of their good hearts, return the family home to them.

A bit like Moorthy's brother [who gave up his right under Islamic law to lay claim to his brother's assets]?

Yes, yes!

This posthumous conferment or promotion [for Moorthy] with the enlarged pension, you know, and gratuity, is no substitute for the family being able to part with their loved one in peace.

So, you're saying that whichever the religious authority is, should make it clear to the family that this conversion is happening before the conversion actually takes place?

There is nothing in the law that makes it part of their duty. To that extent, I think the law must be changed. We must recognise the reality of what goes on. That, sometimes, there are conversions, and those conversions are kept from family members for one reason or the other. It has ramifications. We've seen it. The law must be changed to avert these tragedies.

Do you think we are facing a constitutional crisis with regards to these contentious cases?

Yes. If you look at the Constitution, the whole idea of it is to level the playing field as best you can. And then the Constitution also provides for arbiters in the game. That arbiter is the judge. You've got a goalkeeper to make sure - and again the judge is calling the shots here - that the state doesn't take potshots at fundamental liberties. It appears to me that the referee has disappeared to the terrace, nowhere to be seen. The linesman is not observing the off-side goals, and the state is just picking away at the fundamental liberties that we have willy-nilly! That's a constitutional crisis!

And there doesn't seem to be anything to stop this from happening?

I think there's one thing that can. The public. Up till now, there's been apathy. 'If it hasn't inflicted my family, I don't care.' All right. Look at what happened in Terengganu, Kampung Batu 13 [Ayah Pin's commune]. An entire kampung decimated whilst [there was] a High Court order [for a stay]. To me, that day, the state authorities took the law into their own hands. But, gauge the public reaction to that! And then, fault me for saying apathy prevails in this country.

[Apathy is] tantamount to giving the authorities a blank cheque. 'Do what you will. Doesn't affect my family. I don't care.' If Moorthy's case doesn't wake the public up to what's happening, God help this country.

[But] I don't see why God will bother if we ourselves won't bother.

But, yes, we do have a [constitutional] crisis. Unfortunately, we only react openly when it's an economic crisis.

There have been some calls by certain parties including the Deputy Prime Minister and the Senators Club that there's been enough talk about [Moorthy's] issue and it's time to move on. Would you agree?

Well, we saw how some of the senators reacted to the [Islamic] Family Law Bill [which was recently amended to make it easier for Muslim men to practise polygamy and to lay claim on their wives' assets]. They were very strong in their objections. [But] what did they do finally? They approved the Bill without any dissent. One has to really ask, what is their real concern finally at the end of the day?

I don't think they should suppress public dissent and on the odd occasion when the press carries that dissent, I don't think it is the business of our lawmakers to silence that criticism. It is bad enough that they don't pay heed to it, now they would silence it.

Well, there's all that about how this is a multi-racial country and it's a sensitive issue.

It's a sensitive issue which was addressed with much thought and reflection by the Reid Commission when they framed the Federal Constitution. I think if we kept to the Federal Constitution without tinkering with it, these issues wouldn't arise at all.

You know, this notion of 'sensitive' and therefore 'don't touch on it', is an overused tactic. Every time some issue becomes too hot to handle, we are reminded of May 13. 'Sensitive. Inter-racial relations.' I posed the question after the Moorthy decision, and I said, go and ask the Prime Minister [Datuk Seri Abdullah Ahmad Badawi] how this decision fosters our Malaysian identity.

The answer is never to sweep the problem under the carpet, to pretend it's not there. We've got to address the problem. Otherwise, it continues to fester.

Since Kaliammal was told there was no judicial remedy for her to contest her husband's conversion and for her to claim his body, there have been calls for an amendment or repeal of Article 121 (1A) in the Constitution which states that the civil courts have no jurisdiction over matters within the syariah courts' jurisdiction. What do you think of this proposal?

I think they are wrong. I think [Article] 121(1A), if given an honest rendition, would still leave our civil courts as the final arbiters of the law. That Article 121(1A) as it stands now does not, in any way, change the fact that the syariah court is an inferior tribunal.

[Article] 121(1A) as it stands was never intended to remove the powers of the civil High Court to determine if an inferior tribunal has acted ultra vires. It is still open to the civil High Court.

The clamour to amend, my concern is, lends credence to the interpretation given now to [Article] 121(1A). It justifies the interpretation placed on it. And, if in the final analysis, it is never amended, we are then left with our own acknowledgement that this is what it means. Very dangerous.

So, what should be done then about 121(1A)?

What we need is a final determination by a full panel of the Federal Court who are fully cognisant of their oath of office, and nothing else. No other agendas. And that exercise should not be seen as a means to further that other agenda, whatever it is. It will then give us that final determination.

And what if they rule that the current interpretation is correct?

Well, then I suppose, the process of taking us to an Islamic state has been completed. But, there is also a suggestion of a constitutional court [by Kota Baru MP Datuk Zaid Ibrahim]. You can create a hundred more constitutional courts but if they are not manned by officers who are at all times beholden to their oath of office, and their oath only, what difference does it make, right?

We have today a body called Suhakam. What has it done? My honest opinion is, it has accorded to the government the opportunity to proclaim that, 'See! We are concerned about human rights.'

Now, you create the constitutional court. The government [can say], 'See! We are concerned that the Constitution is properly construed.'

We have a Federal Court. There are sufficient decisions that bear testimony that they are capable of the most sound interpretations of the law. [In] the case of Che Omar Che Soh [in 1988, heard by former Lord President], Tun Salleh Abbas very categorically said, [this is a] secular state.

Notwithstanding his personal inclinations, and that's even touched on in the judgment, yet his final conclusion was, notwithstanding Article 3 [which states Islam is the religion of the Federation], this is a secular nation.

So, Article 121(1A), if you read it carefully, all it says is, the civil courts shall have no jurisdiction on any matter which is placed within the jurisdiction of the syariah court. Very clear. So, for instance, inheritance law between Muslims, that's placed with the syariah court. The civil court won't interfere with that exercise of jurisdiction. But it must always still be open to the civil court to look into the decision to see if they acted ultra vires.

There have been some calls for non-Muslims to seek redress through the syariah courts since Kaliammal's case. Is this one way to resolve the issue?

This call read in conjunction with the submission by the senior federal counsel in Moorthy's case that even if the widow was left without a remedy, the civil court must refrain from entering upon the dispute as it lacked jurisdiction, is firstly, in my view, untenable in law and secondly and more importantly, a very dangerous suggestion which must be resisted at all costs.

It is legally untenable for non-Muslims to seek redress through the syariah courts because the 9th Schedule of the Federal Constitution confines the jurisdiction of the syariah courts to 'only over persons professing the religion of Islam'. This jurisdiction cannot be enlarged by submission.

It is also very dangerous because non-Muslim litigants confronted with issues as in the Moorthy case may, out of frustration with the self-inflicted impotence of the civil courts, go to the syariah court for relief. The syariah court may give the relief sought in some cases, and may refuse in others. It is unlikely that jurisdiction is going to be challenged. Any orders obtained in the syariah court, if challenged in the civil court, will probably meet the same fate as in Moorthy's.

In time, it will be argued that by the doctrine of custom and usage, as Prof De Smith puts it 'the ultimate grundnorm' has shifted.

[Editor's note: 'Grundnorm' is a German word that means 'fundamental norm', and is used to denote the fundamental order that forms a legal system's underlying basis].

The push to make this an Islamic state may [then] have been achieved.

How about the proposed Interfaith Commission which was stalled because of opposition from some Muslim groups? Would that mechanism help deal with matters of conversions in a multi-racial society?

I was part of that effort from 2001 when we were at pro-tem stage just looking at the possibility at that time of having a workshop, to see if there was a need for it. And I was involved at the steering committee stage to get the conference that was held in February last year off the ground. And I'm still part of the working group that has been entrusted by the steering committee to try to bring this to fruition. So, my views on the Interfaith Commission may be biased in that I've been, since 2001, in favour of it.

Looking at the scheme that was envisaged in the draft [Interfaith Commission] Bill that was prepared, it was certainly with regards to problems like Moorthy's case, Shamala's case. That we thought the Interfaith Commission may have a role to play. And to work in tandem with the government.

We honestly felt that the Interfaith Commission would have a real role to play in addressing issues like this, and also in educating the public in coming to terms that this is a secular nation, that rights entail choice.

Let's put it this way. For Christians, if you look at the book of Matthew, I think it's [in] Chapter 28. There's a command to Christians to take the Gospel to all nations. It's the duty of every Christian to evangelise.

But in this country, we have to tell the Christians, 'I'm sorry, the Federal Constitution, which is supreme law, in Article 11(4) allows for laws to be promulgated which would prohibit this.' And we tell the Christians, 'We know that that is your faith, but this law is supreme law and it must override.'

In the same way, we must tell the Muslims, 'Regardless of your views of apostasy, Article 11(1) guarantees the right to practise and to profess to every person, including the Muslim.' And this is supreme law. It will override any notion you have of what is syariah.

Now, this process of educating people to think this way, we thought the Interfaith Commission could play a vital role. Unfortunately, intentions were misconstrued [pauses] and, well, efforts still continue. It's a slow process.

Is the Interfaith Commission also a softer, maybe gentler way to deal with contentious issues than say, going to the courts?

That was one of the other considerations at steering committee stage. We felt that all these controversial cases going to court places a heavy burden on the judiciary. And that perhaps the commission could assist. One example would be, say for instance, the Shamala case. The court could have had the advantage of say, the commission appointing a watching brief amicus curaie [friend of the court] to then apprise the court of how this approach has been taken from a fundamental human rights issue in other jurisdictions. Pakistan, for example. That would certainly take the weight off the courts.

So then, it would play an advisory role to the courts?

Only advisory. We've said it again and again. The function and the role was purely advisory. Never was it ever suggested that the commission would play an adjudicatory function.

What would you like to see happen in order for these issues to be addressed fairly in the spirit of justice for all?

Again, I go back to this. Our leaders, the government which is in fact three arms [legislative, executive and judiciary] not lose sight of their oath of office [to] uphold the Constitution. The Prime Minister has said he is the Prime Minister of all Malaysians. I would like to see him live up to that. And that the government earnestly backs its promise to work towards a Malaysian identity.