COMMENT BY SHAILA KOSHY
The question of jurisdiction between the Civil and Syariahcourts needs to be clarified to produce a smooth working of thetwo systems that brings justice to all parties.
PERHAPS I am naive but I believed in the Rukunegara when I learnt it at the Methodist Girls’ School, Ipoh.
My friends and I, born and bred Malaysians, did not just recite the five principles but believed in the preamble, in which Malaysia is described as a nation “being dedicated: to achieving a greater unity of all her peoples”.
I still believe in our commitment to maintain a democratic way of life; to creating a just society in which the wealth of the nation shall be equitably shared; to ensuring a liberal approach to her rich and diverse cultural traditions; and to building a progressive society which shall be oriented to modern science and technology.
But as we celebrate 50 years of independence on Aug 31, race relations have continued to be a concern among us.
We should have been the prototype for multiculturalism but there are fears that our society is being fragmented by race and religion more and more each day.
Instead of embracing and celebrating our diverse races and religions as laid out in the Rukunegara, we seem to be morphing into opposing sides.
One controversy is the 2-1 majority decision of the Court of Appeal in R. Subashini v T. Saravanan on March 13 telling the non-Muslim wife to take her case to the Syariah Court.
Last year, Subashini received a Syariah Court notice stating that Saravanan, now Muhammad Shafi, had commenced proceedings for custody of their elder son. From the notice it appears the son had been converted.
On Aug 4, she petitioned for divorce and asked the High Court to restrain Saravanan from converting either of their sons and commencing or continuing with any proceedings in any Syariah Court with regard to the marriage or the children.
Her ex-parte injunction was dissolved after an inter partes hearing on grounds it would in effect be a stay of the Syariah Court proceedings. The judge however granted an interim injunction pending an appeal.
One reason, cited by the judge, was that Section 54(b) of the Specific Relief Act disallowed injunctions to “stay proceedings in a court not subordinate to that from which the injunction was sought.”
Justice Gopal Sri Ram disagreed saying the injunction was on the husband and not the Syariah court.
Citing Section 46(2)(b)(i) of the Administration of Islamic Law (Federal Territories) Act, in his dissenting judgment he held it only conferred jurisdiction on the Syariah Court over matrimonial matters where “all the parties to the proceedings before it are Muslims.”
However, Justice Hasan Lah held that the wording of Section 53 of the same Act was “wide enough” to enable Subashini to apply to the Syariah Appeal Court to rule on the legality of Saravanan’s application and interim order he had obtained, on the grounds the Syariah Court had no jurisdiction, as she was not a Muslim.
Although he ruled against her, Justice Suriyadi Halim Omar noted Subashini’s “dissatisfaction will not quietly just go away just like that.”
He called on Parliament “to cap any obvious lacuna promptly and as equitably as possible to harmonise the two systems. Justice is never irreconcilable.”
In 2004, High Court Justice Faiza Tamby Chik had responded similarly in rejecting an application by S. Shamala for a declaration that her husband Dr Jeyaganesh C. Mogarajah's conversion of their two sons was null and void: “The answer is not for this court to legislate and confer jurisdiction on the Civil Court but for Parliament to provide a remedy.”
It’s ironic that the conflict over jurisdiction really only came to the fore after Parliament put Article 121(1A) – laying out the jurisdiction of the Syariah Court – into the Federal Constitution in 1988.
But Suhakam chairman Tan Sri Abu Talib Othman, who had a hand in its drafting when he was Attorney-General, maintains there is nothing wrong with it.
At a parliamentary roundtable discussion on Jan 6, 2006, after the controversy over whether Everest climber M. Moorthy was a Muslim when he died, Abu Talib questioned the civil courts’ application and interpretation of the Article and charged them with abdicating their responsibility and not following the spirit of the law.
“This was not the intent of Article 121(1A) when it was framed. If the plaintiff is a non-Muslim, I can’t imagine the courts saying they do not have any jurisdiction,” he had said.
“At the end of the day, the courts decide on the justice and remedy of individuals, and not the legislative body.”
Justice Gopal Sri Ram, in this case, and then Chief Justice Eusoff Chin in Sukma Darmawan Sasmitaat v the Ketua Penagarg Penjara Malaysia and Anor both held that Article 121 should be constructed in such a way as to produce a smooth working of the system, and any interpretation that will lead to uncertainty and confusion should be rejected, but some courts are not doing that.
Law professor Prof Dr Shad Faruqi, of Universiti Teknologi Mara, has referred to controversial decisions involving jurisdiction as a “silent re-writing” of the Constitution.
Not one to mince his words, Abu Talib had suggested to the roundtable participants that instead of amending Article 121(1A), they could amend the Courts of Judicature Act to make judges responsible for their decisions.
In Parliament last week, the MCA’s Wong Nai Chee (Kota Melaka), Umno’s Datuk Alwi Che Ahmad (Ketereh) and PAS’ Salahuddin Ayub (Kubang Kerian) raised the matter of conflict in jurisdiction. Unsurprisingly, the views were split along racial/religious lines.
The public wants a well-considered reply from the Executive, instead of a cop-out for fear of losing votes.
Families are being torn apart and lives are being put on hold. The public is not interested in whether it is a loophole, lacuna or literal interpretation of the law that has resulted in this state of affairs.
Malaysians want this fixed – find a way that brings justice to all parties, regardless of their religion; find a way that doesn’t allow any party to abuse the processes of either the civil or Syariah courts. Find a way that mends the rift and brings us together as a country.
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