On the timidity of the civil courts in interpreting the constitutional rights of the syariah courts in the Moorthy case, the chairman of SUHAKAM, former Attorney-General Abu Talib Othman, the very man who had drafted the contentious Article 121 (1)(A) in 1988, blamed the civil courts for lacking the balls to interpret the provisions according to the intentions of the proponents (BTW, that’s the Mahathir government with Abu Talib as drafter).
He averred that the insertion of Article 121 (1)(A) into the Constitution was never intended to deny or deprive non-Muslims the right to seek justice in a civil court. In fact he saw the only problem being the judges of the civil courts lacking the courage to act further independently of the Executive (ie. PM & Cabinet), that is, with applying the provisions for non-Muslims with initiative, justice and more guts instead of waiting for a nod of some sort from the Prime Minister.
Abu Talib even accused the civil court judges of worrying about their promotional prospects as the possible reason for lacking the courage. He said: “The courts have failed to do so (interpret boldly) for the slightest unreasonable reasons in many cases where Islam is merely seen on the surface.”
In other words, what he was saying is that the moment those civil court judges detected the faintest whiff of any Islamic element, even though the Islamic connection wasn't the core issue, they would freeze into gutless abdication of their judicial responsibility. This has been what human rights lawyer Malik Imtiaz said.
Well, my dear Abu Talib, sir, those judges are Muslims afterall (perhaps even ambitious Muslims as you suggested), and perhaps as one of my readers had said, maybe they saw Allah's sword of judgement hanging over their head?
When human rights lawyer Malik Imtiaz told him that about judges who admit to being Muslims first, Abu Talib advised him to report the matter and if there was evidence, those judges should be removed.
He said: “They are unfit to be judges, then. Judges should remember their constitutional oath to protect and uphold the Federal Constitution as the supreme law of the land.”
But Imtiaz said that the Moorthy’s case was not unique as such cases have become almost a daily occurrence but which the media had not reported. Imtiaz said what Abu Talib himself said, that judges of civil courts are currently avoiding or rejecting cases whenever there is anything vaguely Islamic in those cases.
Abu Talib said of the Moorthy case, where the widow Kaliammal went to court to stop his Muslim burial, that Article 121 (1)(A) did not take away the rights of non-Muslims. He accused the courts of not interpreting it correctly, and added:
“If the plaintiff [ie. Moorthy’s widow] is not a Muslim, I cannot imagine why the (civil) court can say ‘I don’t have jurisdiction’. If the plaintiff does not profess Islam, there is no reason not to hear the case.”
“The problem here is caused by the court, not by the legislature. Judges are not complying with the constitutional oath they had taken. The courts today are taking the easy way out, either due to incompetence or under threat. Today, our courts are merely courts of statistics not interested in dispensing justice. With sentiments running so high, similar developments could lead to riots.”
Article 121(1)(A) - What terrified the Civil Courts!