Permission to examine and provide an alternative view of Article 121(1A) of the Federal Constitution
The constitution has always been a site of contestation for ideas, values and societal ordering including the rights of its people. Due to this dynamic, it is important to highlight the lived experience of the people with respect to the constitution, so that the discourse surrounding it is humane, real and flowing beyond the black letter of law. It also aims to reclaim the constitutional narrative beyond the courtroom complexities.
With this in mind, allow me to bring closer this provision in the Federal Constitution i.e. Article 121(1A) that has brought a hardship to a number, inconvenience to some and false assurance to most of the people. Depending on which group that one belongs to, most may find this unproblematic than it really is and it is my challenge to convince otherwise.
This provision was added in 1988, altering the judicial power of the Federation that once was vested solely in High Courts of Malaya and Sabah and Sarawak. The amendment excludes the civil court to hear any matter where the Syariah Court has the power to. What this actually means, is that it creates a hard impermeable line between the two courts which effectively insulates the Syariah court (perhaps system) from the entire societal ordering through the Federal Constitution.
Pre 1988
Civil Court Syariah Court
Post 1988
Civil Court Syariah Court
By insulating the Syariah judicial power from the existing civil system in 1988, arguably created a judicial echo chamber. This judicial echo chamber bars the two systems from interacting fluidly and forces it to operate in parallel isolation (see diagram above).
This separation is problematic because Malaysian society is not historically founded upon rigid ethnoracial nor ethnoreligious compartmentalisation evident from the Baba Nyonya, [Indian Community] [Jewish Portugese Community]. The legal issues that arise from this complex social interaction are, therefore, equally complex, overlapping and interwoven.
However, the Post 1988 judicial framework tends to reduce and force these lived realities into a binary legal structure: either matters relating to a Muslim personal law or matters governed by the Civil Court. In practice, the primary consideration (I argue) often reduces to the religious identity of the litigant rather than the true substance and complexity of the dispute itself. A rectangular shape can never fit into a star shaped hole, it is an inherent defect of the system.
Issues involving conversion, family relationships, inheritance and constitutional rights often goes beyond the identity of a litigant being a Muslim. I will expound a scenario to illustrate the complexity of human experience with this binary insulated framework:
A was born to an Indian Christian couple. When A was 6 years old, the biological mother requested her neighbour, an Indian Muslim convert to care for A through a letter of guardianship. At the age of 8, A was converted to Islam by the guardian. Although the adoptive mother was Muslim on paper, she continued practising Hindu rites and traditions. A was therefore brought up in a mixed religious household.
During the teenage years, A began frequenting temples with friends and eventually became convinced of that faith. Upon attaining the age of majority, A then applied to the Syariah Court that A no longer professed Islam. However, A was barred by the legal consequences of the minor conversion. The application was dismissed simpliciter despite evidence showing that A did not genuinely profess Islam and was compelled to live under a religious identity imposed during childhood.
Throughout life, A suffered mental and emotional difficulties from not fitting within a religious manifestation inconsistent with personal conviction. The Syariah Court, by refusing the remedy sought despite the evidence, effectively imprisoned A within a legal identity detached from lived reality.
Insulating one judicial process to another does not advance either system, in fact it regresses the jurisprudence altogether. In Syariah Court at present, I would argue that it is difficult to find meaningful judgements that substantively elaborate on principles of Islamic Law concerning an individual’s right to renounce a religion. More often than not, the courts appear reluctant to engage with the issue through Islamic legal provisions and constitutional rights. Instead, there is often a selective consideration of the evidence presented seemingly directed toward a singular predetermined outcome: that a Muslim may never renounce the religion despite the complexities of issues presented to Court. This is counterproductive to the development of any coherent judicial framework and leaves the people sandwiched between competing systems with no meaningful remedies.
Although till today, I am still uncertain and cannot make certain of the true intentions or aspirations or motive of the constitutional participants and/or political actors at that material time when the change was made, I am certain of one thing: This restructuring of judicial power has indeed caused more and more sufferings to the people than they ever imagined and it is time to revisit this Article 121(1A).
Esei oleh Asma Azmi untuk Siri Wacana Islamisme
