In the recent 2-1 majority decision of the Court of Appeal in Subashini Rajasingham v Saravanan Thangathoray, the appellant Hindu wife was effectively told to submit to the jurisdiction of the Syariah Court and seek recourse through the Syariah Appeals Court to stop her Muslim convert husband from converting their children without the wife's permission.
The majority decision is most worrying in the sense that it permeates not only a feeling of uneasiness and hopelessness among non-Muslims but also of greater significance is the implications hereon and the worrying precedent the case and particularly the decision of justice Hasan Lah has for future cases.
Justice Hasan had held that the wording of section 53 of the Administration of Islamic Law (Federal Territories) Act, was wide enough to enable Subashini to apply to the Syariah Appeal Court to rule on the legality of her husband's application and the interim order he had obtained.
While there is every possibility that Subashini may find justice and fairness in the Syariah Court, had she submitted herself, the fact is that the Syariah Court has no jurisdiction over non-Muslims. It begets the question why couldn't the civil courts grant her the appropriate remedies instead of shunting her to a court which under the Federal Constitution has no jurisdiction over her.
Stranger still is the fact that the civil court was prepared to construe to section 53 of the Administration of Islamic Law (Federal Territory) Act wide enough for Subashini, a non-Muslim, to seek redress in the Syariah Court while feeling hapless and constrained to interpret section121(1A) beyond the narrow interpretation and do justice for Subashini.
In Malaysia, the Federal Constitution is the supreme law of the country and by virtue of Article 4(1), all other laws must be constitutionally consistent and thus also making Malaysia constitutionally secular. In contrast, Pakistan's constitution states that all laws must be consistent with syariah.
Further, Schedule 9, List 2(1), of the Federal Constitution clearly limits the jurisdiction of the syariah courts to persons professing the religion of Islam. Thus it is unconstitutional to elevate and extend the jurisdiction of the Syariah Court (which is constitutionally subordinate to the civil court) to non-Muslims when none exist. And that is precisely what has happened in Subashini's case.
In Subashini's case, and as in previous cases, the unfolding saga is almost similar. Marriage breaks down and an inevitable tussle for the custody of the children of the marriage begins. The husband (more often than not), confronted with the knowledge that under civil laws, the courts are generally minded to give custody of children and particularly children of tender age to the wife/mother and fearing the inevitable, in quick time not only converts to Islam but also their children. The matrimonial dispute then rears its ugly head by having the Syariah Court dragged in and a party to the dispute. In the ensuing saga, it is most unfortunate that the religion of Islam becomes tarnished.
To some extent, the civil courts are at fault too. When marriages break down, the innocent child unwittingly becomes the pawn. In divorce proceedings/custody applications, there is a tendency for many judges to maintain status quo and favour or leans towards the wife by giving custody and care to the wife while giving the husband/father limited access to the child.
In many instances, it is the loss of custody and limited access to the child which is fuelling the husband to seek redress in the Syariah Court. Rightfully, unless there are overwhelming and compelling reasons, courts in such circumstances should grant joint custody and if such an order is not ideal then grant the husband /father liberal access, instead of giving restrictive, limited and regulated visitation rights as the courts are more inclined to do now. It is the husband and wife who are at loggerheads, not the unfortunate child.
The husband, caught in such a situation, turns the Syariah Court as a vehicle of convenience. His conversion and the immediate conversion of the child provides the easiest and fastest route to gaining full custody of the child easily defeating the wife's similar claim in the civil court. Thus, syariah courts are being abused by "non-Muslims" embroiled in marital dispute. It is well worth noting that almost in every instances, the husband's conversion of convenience and the conversion of the child in secrecy occurred after the husband and wife becoming embroiled in marital dispute and fighting to have custody of the child..
Coming back to the main issue, the civil courts when called upon to adjudicate takes the easy way out by referring to Article 121(1A) of the Federal Constitution which prevents the civil courts from interfering with the decisions of the syariah courts. Article 121(1A) ought not to be an escape clause or an excuse for the courts to abdicate responsibility.
It is strange that in many civil courts, judges in divorce proceedings in order to do justice insist the presence of both parties before a decree nisi is made. Yet, when the issue facing the court is the legitimacy and legality of the conversion of a child in secrecy and which occurred without consent and knowledge of one parent, the courts are constrained to do justice.
At the parliamentary roundtable on Article 121(1A) on Jan 5, 2006, the former attorney-general who incidentally was responsible for drafting the said Article) had this to say to the judges of the civil court:
"In a democratic country, one has to accept the view of the majority. 121A(1A) will not be a problem if the civil court has the courage to act fairly and independently. The system is just if the judicial process is in place. The reason for such a clause was that the Syariah Court was more competent to deal with Islamic affairs.
"Schedule 9 of the constitution is clear that the Syariah Court only has jurisdiction over people professing Islam. Yet it has constantly been ignored. However, the constitutionality of law rests upon civil court. But none of the civil judges are prepared to look at it this way. It is an abdication of power and function.
"Therefore, it is the problem of the court and not the legislation. If the civil court judge is true to the oath, there will be no problems like we are facing now. 121(1A) is not intended to limit the civil courts."
In Subashini's case, justice Gopal Sri Ram said "at the end of the day, the courts decide on justice and remedy of individuals and not the legislative body".
Surely, the civil courts can see that the wife is not disputing or even contesting the conversion by her estranged husband. Instead what matters to the wife is the attempt or the act of the husband without knowledge or consent of the wife coveting their child by converting their child. Could the courts not see that the husband is in truth abusing the legal process - both civil and syariah courts? Surely they can. In the circumstances, should the court still reward him?
Just like Subashini, many anguished mothers before her caught in such a predicament see the judiciary as the last bastion of hope and bulwark of justice. No doubt in cases such as this, the judges must also be wrestling not only with difficult issues but also pertaining to their faith. Nevertheless, the hapless mother expects the judge not to allow his personal and religious sentiment to cloud his judgment but instead to be compassionate, sensitive and courageous enough to do justice and if not for the wife at least for the child caught in a legal tussle.
Thus, having taken the oath of office and sworn to defend the constitution, the civil courts judges should do just that - defend the constitution and not shy away from deciding by using Article 121(1A) as an excuse or the fear that his own faith may become compromised. It is a worrying trend that civil courts are unwilling to take up disputable cases like this.
In Subashini's case, justice Suriyadi Halim Omar called on the Parliament to cap any obvious lacuna promptly and as equitably as possible to harmonise the two systems. Justice is never irreconcilable. Similarly in S Sharmala v Dr Jeganesh Mogarajah, the then High Court judge, justice Faiza Tamby Chik in rejecting the wife's application that the conversion of their two children was null and void, said "the answer is not for the court to legislate and confer jurisdiction on the civil courts but for Parliament to provide the remedy."
Could the court not interpret liberally and expend the spirit of the law instead of maintaining a narrow interpretation of Article 121(1A)? But if the law as it presently stands mean that the civil courts in these situations are unable to grant remedies to the non-Muslim wife, then it is time for legislative intervention to ensure equal justice.
It is worth reminding that, just as the father who takes advantage of Article 121(1A) and abuses the syariah courts for the sole purpose of gaining custody of the child, in the light of the majority decision of the Court of Appeal in Subashini's case, recognising that she will not be able to find legal redress or justice in the civil courts may in the circumstances decide that the best and the right option is to simply disappear with the child. Such a case has already occurred. Article 121(1A) and judicial predicament is no concern for her.
To prevent the existing situation from morphing into racial and religious lines, a judicious and equitable solution has to be expeditiously found so as to prevent any party from abusing the legal process, be it civil or syariah. Until such time, civil court judges should ensure that the unfortunate child should not become a pawn to be fought over by parties embroiled in marital disputes. That would mean requiring judges to interpret Article 121(1A) courageously and following the spirit of the law. Courts more importantly must ensure that no one parent can unilaterally decide the child's religion.
Zaid Ibrahim, a lawyer writing in The Sun on March 27, 2007, rightfully expressed the views of the non-Muslims when he said, "To Muslims, I say it is unfair to expect non-Muslims like Subashini to go to Syariah Court even if there is a perfect justice in the syariah system because the law gives her right to pursue her remedy in the civil courts and no where else. Muslims can do away with the civil courts if they so wish.
"They can seek changes to the law to incorporate criminal, contract, property laws, etc, as part of syariah law. What Muslims cannot do so is to expect non-Muslims to submit to Syariah Court." Rightfully said.
The writer is a practicing law in private practice in Johor.