Bar Council is right. Syariah Court should be strictly for Muslims

And Jacqueline Ann Surin is right. The Federal Constitution should be regarded as the highest laws of the land. We need to adhere to these two principles if we were to maintain racial harmony among the people of different faith in this country. Failing which and i’m afraid, there will be unhappiness, dissatisfaction and even unrest in Malaysia.The AAB administration cannot afford to under-estimate the danger of losing ethnic harmony due to insensitivity of some judges and overzealous religious officers.

The recent developments inside and outside the courts were alarmingly worrying. It’s the Umno-led BN Government’s duty and responsiblity to restore religious understanding and racial harmony through decisive and well-balanced policies and decisions.

the Sun has the story and comments…

Bar Council: Syariah Court only for Muslims

Pauline Puah
The Sun

The syariah court should have jurisdiction over only Muslims, said the Bar Council’s newly-elected president Ambiga Sreenevasan.

“It is the Bar Council’s view that where one party is a non-Muslim, the matter must be heard in the civil courts. This is in accordance with the law as it has stood for many years,” she said today.

She was referring to the Court of Appeal decision last Tuesday (March 13) which dismissed non-Muslim R. Subashini’s appeal to stop her Muslim-convert husband – Muhammad Shafi Saravanan Abdullah – from going to the syariah court to dissolve their civil marriage and convert their children to Islam without her permission.

In the majority decision by a panel of three judges, Subashini was told to seek recourse through the Syariah Appeal Court.

Justices Datuk Suriyadi Halim Omar and Datuk Hasan Lah dismissed Subashini’s appeal while Justice Datuk Gopal Sri Ram dissented.

For full judgment, visit: < http://www.malaysianbar.org.my/component/option,com_docman/task,doc_details>

Citing the Tan Sung Mooi case in the Supreme Court in 1994, which clearly decided that conversion to Islam does not allow a person to avoid his legal obligations under his non-Muslim marriage, Ambiga said Subashini’s case again highlighted the fundamental issue of a denial of access to justice to a non-Muslim spouse where the other had converted to Islam.

“This case shows that a real problem exists that has to be resolved swiftly,” she said.

She added that asking Subashini to go to the Syariah Appeal Court was in effect asking her to be subject to a court which applied a theological law she did not believe in.

The All Women’s Action Society (Awam) executive director Honey Tan Lay Ean, in a press statement, said the decision was “disturbing”.

She said while Suriyadi had commented that Muhammad Shafi was well within his Constitutional right in bringing the matter to the syariah court, it was contrary to the Federal Constitution which clearly states that syariah laws apply only to Muslims.

“We ask: What of Subashini’s rights and the rights of her children?”

Tan also expressed concern that the rights of the children had been shunted aside. “Both parents must have a say in deciding their children’s religion. If there is no agreement, the children can choose their religion upon turning 18. Until then, there should be no change in the children’s religion,” she said.

She said a non-Muslim woman would not feel secure in marrying and having children if her husband could potentially threaten to convert and take away their children.

“Awam fears that violent husbands could use this threat to prevent women from reporting cases of domestic abuse, forcing them and their children to suffer in silence,” she said.

Women Aid’s Organisation executive director Ivy Josiah also expressed concern that the judgment was “confusing and raised alarm bells” as it appeared that the rights of the non-converting spouse was retrogressive.

On the same note, Suara Rakyat Malaysia executive director Yap Swee Seng called on the judiciary not to abdicate its duties and responsibilities, and check attempts to use the syariah court for a quick and easy fix such as cases of dissolution of marriages, custody battles and disputes over the religious upbringing of children.

He said the most appropriate court to handle a dispute between Muslim and non-Muslim parties was the civil court.

—————–
The Federal Constitution is the highest law of the land

Comment by Jacqueline Ann Surin
The Sun

The Federal Constitution is the highest law of the land.

Because the Constitution is the country’s supreme law, as stipulated in Article 4(1), all other laws and powers conferred by law must be constitutionally consistent.

Unlike Pakistan’s constitution, which states that all laws must be consistent with syariah – as derived from the Quran and the Hadith – our Constitution does not stipulate this.

This is what makes our nation a secular one, no matter the kind of rhetoric our politicians resort to.

That may be stating the obvious but, sometimes, the obvious needs repeating, especially in the light of the Court of Appeal’s majority decision in the R. Subashini case last Tuesday (March 13).

In the landmark decision, the Hindu woman was told by the Court of Appeal that she had to seek recourse through the Syariah Appeal Court to stop her estranged and Muslim-convert husband from dissolving their marriage in the syariah court, and converting their children to Islam without her permission.

This, despite the fact that both Subashini and her formerly Hindu husband, Muhammad Shafi Saravanan Abdullah, were married in a civil ceremony in 2001, and hence, should logically and justly be governed by civil laws in ending their marriage and resolving issues such as custody and inheritance.

Since marriage is a contract, then the terms of reference that both spouses agree to upon entering such a contract, cannot and should not be overturned by new terms of reference that are a result of one spouse’s conversion to another religion, in this case Islam.

Indeed, to suddenly impose new terms of reference on a spouse, who chose neither a new religion nor agreed to new conditions that are disadvantageous, is grossly unjust and contradicts Islam’s exhortations for justice and fairness.

What recourse, then, do couples have if one spouse converts? Section 51 of the Law Reform (Marriage and Divorce) Act 1976 already empowers the civil courts to deal with such situations.

Nobody disputes the legality of the Law Reform Act. Indeed, the law ensures that the interests of all parties in a dispute are protected according to the agreed terms of their civil marriage.

Hence, the civil court’s decisions thus far in Subashini’s case is highly problematic. By allowing the converted spouse to have his civil marriage dissolved and to obtain custody of his son in the syariah court, the civil court is, in fact, turning its back on the non-Muslim spouse.

What’s more, the Court of Appeal’s majority decision that a non-Muslim spouse must seek remedy in the syariah court, is unconstitutional.

Schedule 9, List II (1) of the Constitution stipulates clearly that the syariah courts, which are constitutionally subordinate to the civil courts, only have jurisdiction over “persons professing the religion of Islam”.

How then can Subashini seek recourse in the syariah courts? And why isn’t the civil court upholding her constitutional and civil rights?

Malaysians should also remember that three years ago, the High Court told S. Shamala, a Hindu, that she could not seek redress in the civil courts to declare null and void her children’s unilateral conversion by her Muslim-convert husband, and advised her to seek the Majlis Agama Islam Wilayah Persekutuan’s help instead.

Out of desperation, Shamala fled the country with her two children.

Following that, M. Moorthy’s family was also told they could not seek justice in the civil courts because Moorthy had allegedly converted to Islam.

In Subashini’s case, however, the civil court has gone one step further by telling a non-Muslim to submit to the syariah court. Not only is the Court of Appeal abdicating its responsibility to protect a citizen’s rights and interests as provided for by good law, it is also ignoring the Constitution by enlarging the syariah court’s jurisdiction where none can exist unless there is law to that effect.

Such a judgment not only undermines the Constitution that this nation was founded on, it also fuels the fear that our Constitution is being hijacked by an Islamist agenda.

Hence, the need to repeat the obvious. The Federal Constitution is the highest law of the land, and we would all do well to respect its supremacy.

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