Saturday, January 07, 2006

Article 121(1)(A) - What terrified the Civil Courts!

What is this controversy about Constitutional Article 121 (1)(A) that we hear so often these couple of weeks?

According to
Malaysiakini, a former Syariah court judge Sheikh Azmi Ahmad claimed to have tried the case that led to the amendment of the Constitution and the insertion of Article 121(1)(A).

About twenty years ago, there was a bloke by the name of Abdul Rahim, a teacher, who challenged the syariah court’s power to prosecute him, because he said he was no longer a Muslim as he was practising the teachings of
Qadiani, a Muslim sect in Punjab, India, founded by Hadhrat Mirza Ghulam Ahmad.

The teachings of this sect had been declared as deviant by the Malaysian Fatwa Council, therefore Abdul Rahim argued in court that if he was following a deviant religion, surely he must no longer be a Muslim and not under the jurisdiction of the syariah court.

So, judge Sheikh Azmi Ahmad after hearing the teacher’s case, ruled that the syariah has jurisdiction over him as the fatwa (religious edict) alone did not necessarily render him an apostate. But Abdul Rahim took the matter to the civil High Court which granted him a decree that he was no longer a Muslim and therefore not bound under the syariah court. Mind you, in those days the civil courts still had balls.

Anyway, the ruling caused a big panic because it meant that any Malaysian Muslim could just leave Islam by following a sect pronounced as deviant by the Malaysian Fatwa Council. Thus the government had the Constitution amended to include Article 121(1)(A) which states that the civil court has no jurisdiction on syariah matters.

A couple of things to note:

(1) the Article was meant to deal with matters affecting Muslims who wanted to leave Islam, like teacher Abdul Rahim, and not cases like Moorthy's where the religion of the deceased was still 'iffy';

(2) it was obvious the civil courts in Moorthy's case had 'forgotten' or refused to 'remember' this when afterall the Article was only relatively recent, in 1988, and therefore should be well known as to what and why it had been inserted.

Malik Tabiaz, a human rights lawyer stated that such cross-religion cases like Moorthy's ocurred on a regular basis, where civil judges nowadays avoided or even rejected them the moment they catched a whiff of Islamic issue in them.

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