Recently the Federal Government has formed a committee leaded by the Former Chief Justice Tun Zaki bin Tun Azmi to study the conflicts between Syariah laws and the Federal Constitution.
I notice that all members of the committee are Muslims. It is important to also appoint Non-Muslim constitutional experts into the committee so that Non-Muslim views with regard to the provisions in the Federal Constitution will also be taken into account before proposal for any change in our law is made. A representative from the Malaysian Bar is a must as this is a statutory body formed to ensure the laws passed in our country is fair and just.
The Federal Constitution is a well-crafted supreme law of our land which holds our diverse nation Malaysia together.
It takes into consideration the interest of all races, religions, languages, cultures, regions, the positions of the Rulers as well as the rights and protection of the common man.
Any attempt to change the position of any race or religion that affect the other races and religions must be discussed thoroughly to avoid conflict.
In harmonizing the Syariah laws with the Federal Constitution, it is important that the views of Non-Muslims are taken into account so that the rights and protection accorded by the Federal Constitution to Non-Muslims as well as the foundations of our nation are not affected.
An example where an amendment to the Federal Constitution to accommodate the complaints of Muslims that civil courts interfere into Islamic matters has now in my view been wrongly interpreted to take away the freedom of religion guaranteed under the Federal Constitution.
In 1988, Article (1A) was added to Article 121 of the Federal Constitution. Article (1A) provides that ‘The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of Syariah Courts.’
Article 121 (1) of the Federal Constitution provides for the jurisdiction of High Court for the States of Malaya and the High Court of Sabah and Sarawak (Civil courts).
Article 11 of the Federal Constitution provides for an absolute right of a person to profess and practice his or her religion. The only restriction is that laws may be passed to control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
Due to Article 121 (1A) of the Federal Constitution, some civil courts have at the moment refused to entertain applications from persons who seek to declare that they are not Muslims on the ground they have no jurisdiction to entertain such applications. The Home Ministry has asked persons who do not profess the Islamic faith to get a Syariah Court declaration to declare that they are not Muslims before the word Islam can be removed from their identity cards. Syariah Courts will be slow or will not grant such an order as it is an offence to leave Islam under the Syariah law. The Home Ministry should allow such amendments to the identity cards administratively. Freedom of religion is determined by the person who profess and practice a certain religion. If his or her religion is determined by a third party, he or she no longer possesses the freedom of religion.
Many Non-Muslims whose identity cards have the word ‘Islam’ on them are in a quandary. They cannot get married to Non-Muslims and have to live with their partners without getting married and give birth to children out of wedlock. The next generation will suffer the same fate as their identity cards will also have the word ‘Islam’ on them if their mothers’ identity cards have the word ‘Islam’ on them.
This is a social issue that our government must resolve as it is causing a lot of problems to such families. The government and the civil courts must respect and uphold the absolute right of a person to profess and practice a religion of his or her choice, a freedom guaranteed under Article 11 of the Federal Constitution.