I would like to first refer to two very important court decisions in the late 80’s, to lend a context to what I want to say.
First, the case of Jamaluddin Othman @ Jeshua Jamaluddin.
A Malay, and presumably born in a Muslim family, Jamaluddin renounced Islam, embraced Christianity as his faith, and took the name Jeshua.
On 27th October, 1987, amongst the many detained during the infamous Ops Lalang, Jeshua was detained under the dreaded ISA. The ground of his detention : he was alleged to have participated in activities of propagating Christianity to the Malays from 1985 which continued up to the date of his detention, these activities having the potential to lead to a tense situation between the Muslims and the Christians in the country and were therefore prejudicial to the security of the country.
On Jeshua’s behalf, an application to the High Court was filed, seeking an order of habeas corpus to secure his release from detention.
It was argued for Jeshua that his activities to practise and propagate Christianity are not prohibited under the Law but in fact guaranteed under Article 11 of the Federal Constitution.
Justice Annuar Zainal Abidin allowed the application and ordered Jeshua’s release. In his judgment, this is what he said : ” Although under s. 8(1) of the Internal Security Act the Minister may detain a person with a view to preventing that person from ” acting in any manner ” prejudicial to the security of Malaysia, I am of the view the Minister has no power to deprive a person of his right to profess and practise his religion which is guaranteed under Article 11 of the Constitution. If the Minister acts to restrict the freedom of a person from professing and practising his religion, his act will be inconsistent with the provision of Article 11 and therefore any order of detention would not be valid.
The government appealed this decision to the Supreme Court, which upheld the decision of the High Court judge.
Jamaluddin’s case is important for a number of reasons. I wish to note just one here.
Throughout arguments in the High Court and the Supreme Court, Jamaluddin’s right to renounce Islam and embrace another faith was never questioned. It was never argued that he could not renounce his faith of birth. It was never asserted that he needed to first obtain an ‘exit order from the syariah court or authorities.
I will return to this later.
The second case is that of the decision of the Supreme Court in Che Omar Che Soh.
It was argued in this case that as Islam is, pursuant to Article 3(1) of the Constitution , the religion of the Federation, the death penalty for drug offences, not having any foundation in Islamic law, was therefore contrary to Islamic injunctions and unconstitutional.
Tun Salleh Abas, presiding over a 5-man coram, noted that the first task of the court was to get at the meaning of ‘Islam’ in Article 3(1). He readily acknowledged that Islam was more than just a collection of dogma and rituals but a complete way of life. He then posed the question that the full court went on to unanimously answer : Was this the meaning intended by the Framers of the Constitution?
In summary, the learned judges of the Supreme Court first noted that consequent upon British intervention :
- The notion of the Malay rulers being God’s viceregent on Earth, which is a precept held by Muslims, was displaced and instead each Malay ruler was regarded as a sovereign within his territory;
- By ascribing sovereignty to the Malay rulers and no longer to God, the divine source of legal validity was severed and a secular system was institutionalised;
- All laws thereafter, including those relating to the administration of Islamic laws, were valid only if made through this secular system; and
- The Malay rulers plenary powers were reduced to such an extent that Islam in its public aspect had become nothing more than a mere appendix to the ruler’s sovereignty.
The Supreme Court concluded, at page 56 of the reported judgment:
‘…it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only. In our view, it is in this sense that the framers of the Constitution understood the meaning of the word ‘Islam’ in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter’.
Given that which has happened in our courts since the Che Omar case, it is also worth noting the following observation by Tun Salleh Abas : ‘…we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.”
The pronouncement of the law by the highest judicial officer in the land then : the law in this country is still what it is today, secular law,
To the best of my knowledge, both Jamaluddin and Che Omar have never been expressly overturned by a subsequent sitting of the Supreme or Federal Court.
They remain good law.
What can we take from Che Omar Che Soh?
- the Supreme Court rejected the argument that the constitutionality of laws might be measured against Islamic laws
- the Supreme Court confirmed that since before independence our system of governance has been secular in nature. That secular system is the foundation of the Constitution
- most importantly, the judicial reminder by Tun Salleh that personal feelings should not get in the way in the process of interpretation and application of the law
What were the prevailing circumstances around the time these two cases were decided?
In the 1986 UMNO elections,at first count, Dr M lost to Tengku Razaleigh. On a recount, Dr M was declared the victor by a margin of 43 votes. Unhappy with the result and amidst allegations of cheating by the use of phantom, unregistered branches, Tengku Razaleigh challenged the party elections in court. The decision of Justice Harun Hashim sent shock waves through the country. UMNO was declared illegal. UMNO was no more. Dr M rushed to register a new party, UMNO Baru, whilst Tengku Razaleigh went on to register Semangat 46.
Note that by winning with a mere majority of 43 votes reflected how much ground support Dr M had lost in UMNO. At least 1/2 of the UMNO warlords, who made up the delegates at the Assembly, were not with him.
The new UMNO Baru suited Dr M. He would be able to weed out those who had opposed him in the last UMNO elections. Even if he could not keep them out of the party, he could block their ascending to high office. And it could be engineered through the office of the Official Receiver to have the assets of the old UMNO transmitted to the new UMNO.
There were, however, a few loose ends to be tied.
Tengku Razaleigh had appealed the decision of the High Court declaring the old UMNO illegal and deregistered. Word around the courts was that Tun Salleh Abas, then Lord President, was going to empanel a full bench of 9 judges to hear that appeal.
An appeal then would usually be heard by 3 judges. And if you were going to try and ‘fix’ the case, you would have to ‘get’ to two of the judges to secure a majority split decision.
A 9-man bench? ‘Fix’ five?
Next to impossible!
Dr M could not afford to have the High Court decision reversed. The old UMNO constitution had a provision that if a member joined another party, his UMNO membership would ipso facto terminate. If the old UMNO was revived by the Supreme Court, Dr M’s membership in UMNO Baru might be reason why his membership, and presidency, in the old UMNO would be at an end.
Dr M’s solution?
He moved to sack Tun Salleh, had him replaced by his errand boy in the judiciary, Tun Hamid Omar, and in the end, it was a 3-man bench that heard the appeal.
Needless to say, the outcome suited Dr M.
Around this time, Islamists were unhappy with the Jamaluddin decision. There was also unhappiness with instances of the civil High Court interfering with the decisions of syariah courts.
Dr M, then unpopular with many quarters, was eager to find friends whereever he could.
And so, as Ops Lalang was kicked off to silence dissent from opposition politicians and activists, Jeshua was also caught in the dragnet.
Kit Siang and Karpal, the loudest voices in Parliament, were also in detention.
Dr M would now move to place the judiciary under his thumb once and for all. In the process, though, he would win the favour of the Islamists by amending the Constitution, putting in place a provision rather benign in substance but one that would probably get the Islamists all excited.
First, to subjugate the judiciary.
Our High Courts, since independence, were clothed with original jurisdiction to hear cases at first instance. That means, their power was not derived from a law passed by Parliament, but existed with the courts. This is essential to the doctrine of the separation of powers.
In 1988, whilst Kit Siang and Karpal were detained under the ISA, Dr M bulldozed a bill though Parliament to change the law. The High Courts would now have such powers as conferred by law. The original jurisdiction was gone. The courts would only have such powers as were given by parliament. And parliament was dominated by the executive. And Dr M dominated the executive.
Then the amendment to the constitution to please the Islamists.
A new Article 121 (1A) was added to provide that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”.
This new clause did not confer any new jurisdiction on the syariah court. It merely declared that if a matter was within the jurisdiction of the syariah court, the civil courts would not exercise jurisdiction over such a matter.
In the years that followed, Dr M packed the judiciary with men and women who could be controlled to do his bidding. Throw in his handpicked corrupter of the judiciary, VK Lingam, tasked to wine and dine selected judges, and the subjugation of the judiciary, that had started with the sacking of Tun Salleh, was complete. The few good men and women in the judiciary were left feeling powerless to do anything other than to do the little justice they could.
At the same time, those being elevated to the judiciary from the AG’s Chambers had an altogether different agenda.
An Islamisation agenda.
I don’t know when, but at some time, a Syariah division of the AG’s Chambers was set up. In the Syariah section of the AG’s Chambers website, one of their stated objectives is to study and review all civil laws and to render them syariah compliant!
See the departure from the sentiment expressed by Tun Salleh?
In 1988 or thereabouts, nobody questioned Jeshua’s right to renounce Islam and embrace Christianity. 11 years later, without any change in the written law, Lina Joy was told by the civil High Court that for her to leave Islam, she would have to obtain an exit order from the Syariah Court.
If the written law had not changed, what had?
The mindset of judges, and how they viewed their oath of office to uphold, preserve and defend the constitution, when it came to matters that had a hint of ‘Islam’ in it. Read some of the judgments that have had to interpret the new Article 121(1A) and you will discern a trend and an effort to breathe more into it than actually springs forth from the words.
Interpolaton, and not honest, judicial interpretation.
The citizenry, then, can be forgiven their inertia, given that the mainstream media post Ops Lalang were mere mouthpieces of the government. Few would have been aware of the constitutional amendments of 1988 and their ramifications, or the surreptitious judicial activity that was playing out in the courts.
September, 2001, Dr M took it upon himself to declare our country an Islamic one.
Whatever that might mean.
In violent contradiction of Che Omar Che Soh?
The non-Muslim community and leadership reacted with, “Shhh, don’t get involved. This is a fight between UMNO and PAS to outdo each other as Jaguh Islam. Nothing will come of this”.
A benign statement by a Machiavellian politician.
No harm will come of it.
Unbeknownst to many, Islamists began to work, to ride this wave, this clarion call of ‘Islamic country’.
The raid by syariah authorities on Zouk in 2005?
The demolition, in 2005, of an entire village in Besut, whose inhabitants were said to be deviants from Islam, notwithstanding an order of the High Court prohibiting the same?
A Hindu widow being informed by the civil High Court, in 2005, that it could not look into the matter whether her deceased husband was a Muslim or Hindu, because the syariah court had declared him Muslim without there having ever been a judicial examination of this issue?
Wont affect the non-Muslims?
And if it affects the Muslims only, don’t get involved as it does not affect the others?
Unlike the time of our fathers, our generation cannot feign ignorance with regard to what is happening around us.
So what is happening around us?
Hadi Awang’s 355 Bill seeks to give the Syariah Courts power to mete out punishments of much greater severity than those courts now have.
This does not sit with my understanding of Islam which enjoins us to forgive, forgive and forgive again.
I do not care to have the Islam of PAS shoved down my throat.
And I do not care to see our secular system whittled down by clothing a judicial system of a particular faith that was supposed to form part of an array of inferior tribunals.
Najib, in offering to carry bill no. 355 as a government bill, is doing no more than what Dr M did some 30 years ago. His popularity, even amongst his own party members, is at an all time low.
He does not care about the long term ramifications of this bill becoming law.
But then , when has he ever cared about us?
What we have witnessed over the last 30 years is an ever increasing encroachment of our individual space.
In the name of Islam.
Let me give you one last example before I write off this post.
In the 70’s, the sound of the azan, the call to prayer, permeating into your homes, became the norm.
These days, at night, after the prayers at the mosque, increasingly there will be a lecture at the mosque. It will blare on the loudspeakers drowning, the sound from your TV.
Suffer this encroachment of your individual space, in silence?
Well, suffer in silence too, then, if, one day, in the not too distant future, your 7 year old daughter, whether Muslim or not, is required to dorn the tudung when outside the home.