Let constitutional court have final say

The New Straits Times, Kuala Lumpur
03 January 2006



COMMENT: Let constitutional court have final say
Zaid Ibrahim

M. MOORTHY alias Mohamad Abdullah has been buried, but not the issues
raised by his family and many Malaysians still living.

The paramount question that many feel in their hearts but fear to ask
is whether there is justice when dealing with issues of faith in this
country.

The case brings to the fore not just the issues of jurisdiction of
the civil courts over Islamic matters but, more importantly, the
fundamental nature of the Constitution itself. Rather than censor
ourselves on yet another subject that underpins the way we Malaysians
perceive ourselves and each other, it is time to seriously and openly
investigate solutions that go beyond feel-good campaigns and rhetoric.

Our Constitution guarantees many fundamental liberties essential in a
free and democratic country. It grants freedom of religion and faith.
But over the years, the courts have declared themselves impotent and
powerless to do anything to address matters that may affect those
rights. Without the power of judicial review, civil courts are able
to conveniently wash their hands of any responsibility over cases
that may bear a whiff of religious controversy.

In 1988, the Government, in its effort to uphold the sanctity of the
Syariah court system, amended the Constitution by inserting article
121A, which precludes the High Court hearing any cases involving
Islamic matters. By a stroke of the pen, we inadvertently created a
parallel legal system with no final arbiter.

At least before 1988, the High Courts did possess the general
constitutional power of judicial review that empowered them to
intervene where decisions of the Government and even the Syariah
courts may be at odds with the rule of law. Judges were more prepared
to do so then. Not anymore.

What is urgently needed now is an express power of judicial review to
be granted to the High Courts to ensure that the acts of government
and other authorities be subject to that power. Some would argue that
there is no need for judicial review because the Government is
answerable to Parliament for its policies and actions. This is a
superficial argument because Parliament is not wholly competent to
determine if an action of any department or authority is lawful.

The constitutional power to review must be vested in the judges.
Otherwise, all the provisions of fundamental liberties, whether
contained in our Constitution or in legislation, are meaningless.

In so far as the Syariah courts are concerned, they too are entities
created out of the Constitution, and all Islamic laws are statutory
laws enacted by the respective State Assemblies, just like other laws
in this country. Why they need to be excluded from review of High
Court judges escapes me.

We must not forget that in a plural society we cannot separate and
segregate the lives of the people by legal means. People interact,
their lives intertwine with one another in the community, in private
and in public life, regardless of faith, race or ideology.

Naturally, there would be conflicts and issues to be resolved between
them. It could be a failed marriage and one of the parties has
renounced the faith. It could be about custody of children or
property. Many times, we have seen conflicting decisions that
different systems inevitably produce, particularly in cases affecting
both Muslims and non- Muslims.

Moorthy’s case illustrates the dilemma clearly. Justice may have been
done, but it certainly was not seen to be done. Muslims may feel
relieved that a fellow Muslim (if indeed he was a Muslim) was buried
in accordance with Islamic rites, but the family was in grief for
they believed that he died a Hindu.

Only God knows. Lesser mortals must not play God with peoples’ lives.
They must devise a legal system that seeks to do what is right and
fair to all.

Without a solution, similar cases are likely to happen again and will
continue to fester in the hearts and minds of the aggrieved. This
will exacerbate polarisation of the society due to resentment that a
matter may not have been impartially resolved, and fear of being
subjected to potential entanglements. I realise that what I am saying
may be controversial and may prick the ultra-sensitive skin of
conservatives but I also know that many Malaysians — Muslims and non-
Muslims alike — fundamentally agree with me.

The continuance of this situation will contribute to a Malaysia of
parallel systems and communities — legal, economic and social — that
rarely intersect. We will lack the genuine cohesion that is needed
for our collective survival and prosperity.

We need to rebuild our confidence in a system that all of us can
accept as impartial, regardless of race or creed.

This is why we need a constitutional court to deal with the
enforcement of fundamental rights and judicial review. Many countries
have it and even Afghanistan will have one soon.

By adjudicating constitutional questions and enforcing constitutional
provisions, a constitutional court would make our Federal
Constitution a living document that shapes and directs the exercise
of power.

Today, our Constitution is merely a collection of phrases that
symbolises our limited aspirations. A constitutional court would be
the final arbiter we desperately need to resolve the diverse
conflicts faced by our communities.

This court should not be perceived as neither Muslim court nor a
kaffir court. It will be a court of justice, simple as that. Capable
retired judges with utmost integrity can form the quorum. To ensure
that Islamic principles of justice are not compromised, the court
should include the expertise of internationally respected Muslim
jurists.

This is a way forward to unite all citizens under a living
Constitution, in mutual respect and justice. Let’s give it a try. All
we have to gain is justice and fairness to all.

* Datuk Zaid Ibrahim is MP for Kota Baru. He is also senior partner
and chairman of Zaid Ibrahim & Co.