In the wake of the raging debate over yet another legal controversy, the 'Civil-Syariah Courts jurisdiction fault-line' has again been brought to the fore. It has caused this nation undue strain and subjects her peace-loving plural citizenry to immense distress, every time it is has to be brought under emotive scrutiny.

One needs to only peruse the many writings now abound, to surmise the greatest loser, every time a display of this 'obvious lacuna' in jurisdiction (borrowing from Justice Suriyadi to mean gap or loophole) takes centre stage in national politics. I will have to defer pronouncing this 'judgment', if it still remains within your 'blind spot'.

Many could recall that Prime Minister Abdullah Ahmad Badawi, in the face of intense rage over the controversial burial of the late M Mohammad Moorthy, assured everyone that while Article 121(1A) would not be amended, "only laws that create problems and misinterpretations should be studied. (Bernama, 20, Jan, 2005). For the record, the comment was also made in relation to a joint memorandum submitted by 10 non-Muslim cabinet ministers to him, urging him to review laws related to conversion of religion.

It has been more than a year since then. One cannot recall any amendments to any law or any debate amongst law-makers in parliament to remedy the situation.

After the legal dispute of the distressed widow S Kaliammal with the Federal Territory Religious Department (Jawi) over her late husband's burial, the heat was arguably temporarily dissipated by the timely 'landmark judgment' on Nyonya Tahir's status as a non-Muslim by the Syariah Court, at the time of her death.

Thereafter, other less high-profile cases appeared on stage, but one couldn't miss the controversy caused by the case of the late Rayappan Anthony, whose family was subjected to distress and humiliation caused again by the ambiguous religious belief of the demised person resulting in a legal battle over which court has jurisdiction over the deceased person.

On hindsight, the tragedy could have been avoided, provided there was political will and commitment to see to the effective management of the dual legal-system. Both prerequisites were evidently wanting and the rest is history.

Latest test

R Subashini vs T Saravanan is the latest case that places the fault-line of the dual-legal system to test. Subashini, a 28-year-old Hindu woman married T Saravanan, also a Hindu, in a civil ceremony in 2001. The couple has two sons; Dharvin Joshua, 3, and Sharvind, 1.

Later, their marriage broke apart. Saravanan meanwhile embraced Islam, and changed his name to Muhammad Shafi Saravanan. Shafi thereafter applied to have the marriage dissolved under the Syariah Court.

The wife then presented a petition for divorce and applied to the High Court for an injunction restraining the husband from (i) converting the children to Islam and (ii) continuing with any proceedings in any Syariah Court.

Shafi claimed that Dharvin converted to Islam along with him in May 2006 about which Subashini claimed no knowledge of. Earlier, the High Court had passed down its decision to set aside the injunction granted to her last year (ex-parte) to enable Subashini to temporarily stop Saravanan from commencing with the proceedings in the Syariah Court, but later withdrew the injunction after hearing from Shafi (inter-parte). She turned to the Court of Appeal to overturn the High Court's decision.

On March 13, in a 2-1 majority decision passed down by the Court of Appeal, Subashini was told that she had to seek recourse through the Syariah Appeal Court to stop her estranged husband from dissolving their marriage in the Syariah Court, and converting their children to Islam without her permission.

The Court of Appeal judges who dismissed Subashini's application were Justices Suriyadi Halim Omar and Hasan Lah. The presiding judge of the Court of Appeal, Justice Gopal Sri Ram, dissented.

Subsequently, Subashini applied for an interim injunction to restrain her former husband from proceeding with his case at the Syariah Courts pending the disposal of her application to the Federal Court to hear her appeal of the Appeal Court's earlier decision.

On March 29, the Court of Appeal 'reviewed and reversed' their decision again by a 2-1 majority. Shafi will have to wait for the apex Federal Court to hear the appeal by his wife.

Government to blame

Be that as it may, the writer undividedly lends total support to the call made by both Parti Keadilan Rakyat (PKR) advisor Anwar Ibrahim and to some degree DAP chairperson Karpal Singh that the government must be blamed and taken to task for perpetuating injustices caused by this 'conundrum'.

At the heart of this debate, though not quite openly admitted, is again the controversy caused by the amendment dating back to 1988. In the case of Subashini, the issue of directing non-Muslims to seek remedy in the Syariah Courts has become very contentious and in fact the very bone of contention.

It has become evident that the lacuna has placed great difficulty on the part of the judges to adjudicate justice and preside on precarious 'overlapping' jurisdiction of this nature particularly when it involves both Muslims and non-Muslims contending at the same time.

However, going by the words of Abu Talib Othman, the drafter of Article 121(1A), the Article "did not take away the rights of non-Muslims and never intended to deny or deprive non-Muslims the right to seek justice in a civil court."

Lest we have forgotten, it is perhaps pertinent to remind that as far as Muslims are concerned, Article 121(1A) saves, as it were, the High Court from trespassing on the Syariah Court's jurisdiction. Repealing 121(1A), to the Muslims, is perceived as dismantling the Syariah Court, a decision not quite welcome, given the already very limited role and jurisdiction of Islam in the Federal Constitution.

Though well meaning, the many unforeseen controversies subsequent to its implementation, overwhelmingly underscores the need for its effective administration in dispensing justice, be it judiciously or if need be, heatedly or fiercely revisited by both the legislative body and the judiciary. If they need to iron (read 'fight') it out, so be it!

Of late the establishment of a Constitutional Court to resolve, inter alia, controversies of this nature, has been mooted. It deserves immediate attention by both institutions. That said, no one should doubt that the buck must stop at the Executive ie the PM. In view of his ineptness, this has regrettably, become the greatest stumbling block to seeking a resolution to this lacuna.

By perpetuating the incompetence of the current leadership now into his fourth year, the nation is again confronted with a looming constitutional crisis every time a 'lacuna' of this nature raises its ugly head. To accuse the Umno-led government of 'benefitting politically' from this lacuna may be both presumptuous and unsolicited. But state it I must.

Most unbecoming, though lamentably true, is the fact that while many suffered grievously from these predicaments, it is Islam and the Muslims that are taking the brunt of this controversy and seem as its greatest losers. Muslims are now unfairly perceived as imposing the Islamic laws on adherents of other faiths. This has further distorted the perception and stereotyping of Islam and the Muslims. This is deplorable at best, diabolical at worst, much as it equally undermines genuine efforts toward rebuilding national integrity.

The writer takes liberty to represent (all) truly practicing Muslims, regardless of their political persuasions, that we are most willing and committed to end this ignominy. Everyone must be accorded justice and equality before the law and have their rights protected as guaranteed by the Federal Constitution.

DR DZULKIFLI AHMAD is Director, PAS Research Centre.