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The sad and controversial events surrounding the burial of the late M Moorthy have already received numerous comments, including from the Bar Council. The fact that it continues to attract further discussion, as it should, is testament to its immense importance as a fundamental issue affecting the Malaysian society.

This is certainly not the first time in Malaysia when a tussle occurs between two groups of persons holding differing beliefs, in relation to the last rites of a deceased. While Moorthy’s case, unfortunately, did not find satisfactory resolution, the ensuing public discussion witnesses a society that is maturing. It is noteworthy that more and more Malaysians of all faiths are able to debate complex issues in a rational and non-emotional manner, and that both the government and the people display greater willingness to engage in healthy discourse, without shying away on the slightest claim that the issues involved are “sensitive”. It is also heartening to learn that the Prime Minister has responded positively, by promising to find a fair solution to the problem.

The true nature of Moorthy’s case, when viewed in the proper perspective, is neither about race nor about religion. Rather, it involves an issue concerning the fundamental right of belief, as well as the mutual respect and acceptance of one another’s beliefs in a plural society.

Every religion embraces the freedom of thought, and abhors coercion; for it is this very freedom, and the choices it presents, that forms the foundation for individual faiths. Every religion, too, promulgates love, understanding, respect and mutual acceptance. For these reasons, it is accepted that the freedom of religion and the rights attached to it are universal and fundamental to all societies. In Malaysia, these rights are also enshrined in the Constitution. It is the question of the protection of these rights that underscores Moorthy’s case.

Freedom of thought entails the right of every person to live his or her life, and finally to die, in a fashion that accords with his or her personal beliefs. In a situation where a deceased’s religious faith is in doubt, a dispute may arise relating to the performance of his last rites. It is incumbent upon every civilized society to provide a fair, adequate and equitable way of resolving such dispute. The Moorthy case, along with other similar cases before his, illustrates the inadequacy or failure of such a mechanism in our country. It is meaningless for us to acknowledge that a right exists, if at the same time no practical remedy is afforded to one who seeks to invoke that right. This would amount to a denial of access to justice.

This apparent inadequacy or failure has triggered a search for a solution. Various quarters have called for an amendment to be made to the relevant provisions in the Constitution, while some others hold a different view.

In the Bar Council’s view, Article 121(1A) of the Constitution, if properly construed, does not remove the jurisdiction of the Civil Court to adjudicate a dispute where at least one of the parties is not within the jurisdiction of the Syariah Court. The High Court in Moorthy’s case, however, had taken the contrary interpretation. If the Appellate Courts uphold such an interpretation of Article 121(1A) and similarly decline jurisdiction, then indeed an amendment will become necessary.

It must be immediately emphasized that any amendment to the Constitution that affects fundamental rights and liberties should only be made with extreme care and after extensive consultations. Let us not forget that one of the reasons for our present predicament is precisely because the original Article 121 had been tinkered with, despite protest from the Bar at the material time.

One way of amendment, and the simplest, is to revert to the position under the original Article 121. Another is to amend Article 121(1A) to make it clear that the Civil Court has jurisdiction over any dispute where at least one of the parties is a non-Muslim (who is hence not subject to the jurisdiction of the Syariah Court). These possibilities must be carefully studied and considered, and all interested parties must be consulted, bearing in mind the paramount need to provide a solution that will be fair to persons of all faiths and beliefs.

Some quarters have suggested, instead, that amendments be made so as to allow non-Muslims to have access to the Syariah Court. This proposal, in the Bar Council’s view, is retrogressive and unacceptable; for it is incorrect to require a person who is not (and who should not be) subject to Syariah laws to nevertheless submit to its ambit and jurisdiction, apart from that being a fundamental and unjustifiable departure from the safeguards laid down in the Constitution.

Any amendment to the Constitution, if and when necessary, will only prove useful and constructive if it further promotes fundamental rights and liberties; not if it erodes or dilutes them.

Related story: Bar: Law changes should promote rights

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