Click HERE to read on the Court of Appeal's latest decision (March 30th) on the Subashini case
See below the list of judges in the Federal Court, the Court of Appeal and the High Court or click here
Note:
- Of the total NINE (9) Judges appointed to the Federal Court, only ONE (1) is a NON-Muslim.
- Of the total SIXTEEN ( 16 )Judges appointed to the Court of Appeal, only FOUR (4) are NON-Muslims
- Of the total FORTY (40) Judges appointed the High Court, FOURTEEN (14) are NON-MUSLIMS
The frustration of the legal profession with the highly controversial decisions from the Bench of Malaysia's secular court on religious issues is best expressed by one lawyer's comment in his blog, "What's going on?"" The recent 2-1 majority decision of the Court of Appeal in Subashini Rajasingham v Saravanan Thangathoray, 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. "
-Norman Fernandez
"... We are heading for a constitutional crisis should members of the Bench decide to abandon their role in protecting and defending the Federal Constitution, the highest law in this land."
-Jeff Ooi".... 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...."
-Zaid Ibrahim
Questions are asked by Malaysians whether the judges in Malaysian secular courts deliberately refused to consider the fundamental liberties of Malaysians enshrined especially in Articles 11 and 12 of the Federal Constitution, which read, inter alia:
"...Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it'
...No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.
.... For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian."
It is becoming obvious to Malaysians in general that the majority decisions of the courts made recently on religious issues are guided and/or influenced more by the individual judges' own religious leanings and personal prejudices instead of being based on the rule of law and the enshrined articles of the Federal Constitution protecting the fundamental liberties of the citizens.
So, we must really ask "What is going on" on the Bench when it comes to ruling on matters affecting the fundamental liberties of each and every Malaysian, irrespective of age, sex, race and religion ?
The majority decisions of the courts are letting down the aggrieved citizen in the country seeking justice , leaving aside the perceived injustices coming from the politics of the Executive and the Legislative.
It would appear from recent cases that our judges in the secular courts, right up to the Appeal Court, had surrendered their sacred responsibility as unprejudiced referees on matters of fundamental liberties; in the eyes of the man-in-the-street, it is tantamounting to the courts making a mockery of the Malaysian Federal Constitution.
For those appearing before these judges, there is bewilderment in the way the majority decisions were made, leaving a feeling that their fundamental liberties are not upheld and respected by the courts.
The question Malaysians are asking: Can our judges in the secular courts be relied upon by each and every Malaysian citizen, irrespective of sex, age, race and religion, to protect the sanctity of the Federal Constitution and his or her fundamental liberties?
By the way the judges ruled recently on religious issues, the answer seems to be: "NO".
For one thing, religious leanings of MUSLIM judges sitting on these cases seem to sway their decisions more than the articles of the Federal Constitution.
Integrity of the judges's decisions could be compromised, if recent events are to go by, and they may stand accused in the court of public opinion, of acting irresponsibly in discharging their duties viz-a-viz the Federal Constitution.
There is a constitutional crisis, undoubtedly, NOT on the state of the nation, but on the very foundation of the basic rights of Malaysians in a democracy, ie their fundamental liberties enshrined in the Malaysian Federal Constitution.
A crisis that comes not from the Executive, but from the Judiciary itself, that third estate which we least expect such a crisis to come from.
Thus, a dark cloud is now hanging over the country when it comes to seeking redress from the Bench on our fundamental liberties.
COMMENTARIES:
- From Disquiet Blog: Read here and here and here for more
Excerpts:
"... I would have thought that State Authorities and the Judiciary would have begun to appreciate that the Constitution was being hijacked and the Rule of Law being undermined, in part by ill conceived decisions on the part of the latter.
... I would have thought that it was obvious that the trend of decisions being handed down by the Civil Courts, including the Court of Appeal and the Federal Court, were doing more damage to the fabric of our nation than any other element, barring corruption and mis-governance.
It seemed to me that once the cabinet intervened over Rayappan and a more uniting form of Islam was being propounded by all concerned, greater constitutional understanding and constitutionalism were to be the order of the day.
I was wrong.
Take a look at a cross-section of cases that have come before the Courts in the last 3 months.
Case 1 - In the Children's Court
On December 28th 2006, I appeared for a Hindhu lady, X, in the Children’s Court.
The paramount consideration of the Court in the exercise of its powers is the best interests of the child or children concerned. The powers under the Child Act as such go to the welfare of children. The Act empowers the court to exercise powers necessary to ensure that a child, or children, are kept safe.
X was married to a Chinese man. She bore him 3 children. A short while ago, he married a Malay woman, someone who X and the children were familiar with. Though he converted to Islam for that purpose, the 3 children did not. At some point after the marriage to the Malay woman, he arranged for the children to visit him for the school holidays. Thereafter they remained with him, this decision having been arrived at WITHOUT X having been consulted. X managed to see them from time to time.
Unbeknownst to my client, her husband passed away and some 12 days after, the children were converted into Islam. The conversions were effected without the knowledge and consent of my client. All 3 children were under the age of 18.
The step-mother then refused to allow the children to return to X. X took out custody proceedings in the High Court. The High Court granted X custody.
Soon after, the Majlis Agama applied to intervene into the High Court proceedings and set aside the custody order. The Majlis contended that the children were Muslims and the High Court as such did not have jurisdiction. This was the first X had any indication of the conversions. X is taking steps to challenge the conversions.
It must be borne in mind that the right of natural parents to guardianship and custody is a constitutionally entrenched right, reinforced by statutory law.
In mid January, the Magistrate (ruled) the (Muslim) step-mother was given custody of the children. As a consequence, the custody order granted by the High Court was rendered valueless.
The matter is pending review by the High Court in Shah Alam.
Was the Constitution adhered to? I do not think so.
Was the decision in the best interests of the children? I cannot see how this could be so.
It is a presumption in family law that a child’s interests are best secured by the child being with his or her natural mother. Section 17(1)(h) is a statutory exception to this general rule.
Case 2 in the Federal Court
On January 4th 2007, I appeared with Haris Ibrahim and Edmund Bon in the Federal Court for Haji Kahar who the media has described as the “self-styled Prophet of Selangor”.
Haji Kahar had been charged with several offences under the relevant Selangor Islamic Criminal Law Enactment and these were to be tried in the Syariah Courts.
Suffice it to say that there was a serious question of constitutionality going to the competence of the Selangor State Legislative Assembly to make the laws that were now being applied against Haji Kahar.
It is common for a single judge of the Federal Court to sit at the first stage.
... we got in touch with the Attorney General’s Chambers. Leave would be agreed to. There was nothing unusual about this as there were serious issues to be considered, issues which had yet to be determined even though about 6 months had lapsed since we argued the case.
You can imagine our surprise when we went to the Federal Court and discovered that 5 judges would be sitting to hear the leave application (Tun Fairuz, Dato’ Malanjum, Dato’ Augustin Paul, Dato’ Hashim Yusof and Dato’ Azmel).
It was even more surprising that the Bench insisted on being addressed on the issues.
A question was raised as to whether this was a matter which the syariah court ought be deliberating over, even though it was plainly a case concerning the competency of a law making body and a challenge which the Constitution clearly vests the Federal Court with jurisdiction to deal with.
The syariah courts very clearly are not and cannot be empowered to adjudicate cases involving constitutional issues (see the report in The Sun on 5th January 2007).
At one stage, one of the judges commented that the Attorney General’s Chambers should never have agreed to leave being granted.
Leave was ultimately granted. It was a struggle though, one we did not expect. The substantive phase will be dealt with in due course. In the meanwhile, we are still awaiting the decisions in Sulaiman Takrib and Lina Joy.
Case 3 - The Subashini Case in the Appeal Court Read Here the judgement on Malaysian Court Website
On January 8th and 9th, I appeared for Subashini in her now notorious appeal. The case is fairly straight forward.
Subashini is a Hindhu. She has two children. Her husband converted to Islam and indicated that he was going to convert their first child to Islam. She commenced proceedings in the High Court for a decree of divorce and consequential orders, including an order (common known as an injunction) to restrain her husband from converting their first born to Islam.
It is beyond dispute that the High Court has jurisdiction to grant a decree of divorce and consequential orders. Unbeknownst to her, her husband unilaterally converted their first child into Islam. He also commenced proceedings in the syariah court for custody of the first child.
Fearing the possibilities, Subashini applied for an interim injunction to restrain her husband from converting their first child into Islam and to commence and carry on with proceedings in the syariah court.
In my view the syariah court has jurisdiction to grant decrees of divorce and make consequential orders, including those going to custody, in respect of marriages solemnized under Islamic law.
It follows that the syariah court has NO jurisdiction to grant such decrees or orders over marriages solemnized under civil law.
Non-muslim marriages are solemnized under civil law. There is no issue at all here and the relevant law was clarified by the Supreme Court (as it was formerly known) in a case referred to as Tang Sung Moi.
The argument, in essence, made by Subashini was that any proceeding commenced in the syariah court would be a proceeding without proper foundation in law and therefore an abuse of process.
More so for the fact that such proceedings would be positioned in ‘competition’ to the High Court proceedings. The High Court proceedings being correct in law (from a jurisdictional standpoint), and the law being as it is, the syariah court has no power to make any order. The question arises therefore why would any proceedings be commenced in the syariah court at all.
The decision of the Court of Appeal (delivered last week) is an incredible one.
By a majority decision, 2 to 1 (Suryadi J and Hassan Lah J as againt Gopal Sri Ram J), the Court of Appeal ruled that the syariah court had jurisdiction and as such there was no basis in law for the High Court to grant an injunction.
In a far reaching (and in my view completely unfounded) step, 1 of the majority judges ruled that Subashini ought have petitioned the syariah Court of Appeal to argue that the proceedings in the syariah court were jurisdictionally deficient.
This was despite the Constitution limiting the jurisdiction of the syariah courts to persons professing the religion of Islam. No reference was made, however, to the Constitutional limitation.
It is equally significant that the minority judgment is a careful and meticulous analysis of the constitutional framework and the inter-relation between the civil and syariah courts. In my view it is the strongest judgment yet on the subject.
I cannot begin to understand how to justify the position taken by the majority. All that remains for Subashini is the Federal Court. .." - From Malaysiakini - Letter to Editor from a lawyer: Read here for more
Excerpts:
"... The recent 2-1 majority decision of the Court of Appeal in Subashini Rajasingham v Saravanan Thangathoray, 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.
.... 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.
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.
... 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.
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”.
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.... " - From Malaysiakini-Letter to Editor: Read here for more
Excerpts:
"... There is a general feeling of despondency over the gradual erosion of non-Muslims rights as provided for in the Federal Constitution.
The majority decision went on further to declare quite wrongly and in direct contravention of the Federal Constitution that Subashini's recourse albeit a non-Muslim was at the Syariah Court and not at the High Court.
How two learned judges could circumvent the Fedaral Constitution and arrived at such an erroneous decision is certainly mind boggling.
There are two possibilities why a straight forward case ended in such an acrimonious fashion.
Firstly, the two judges were so illiterate in their knowledge of the provision of the Federal Constitution that they overlooked the relevant provisions embodied in the constitution. This is quite unlikely as the provision in the constitution is so elegantly crafted without any ambiguity that a chambering law student would not even overlook it.
The second more plausible possibility is that unseen hands already decided on the fate of Subashini's case even before her appeal was to be heard by the High Court.
Earlier, all three attempts to divert the case of S Sharmala, M Moorty and A Rayappan to the Syariah Court ended in failure.
For some in the syariah and civil courts, there is a fervent desire to prove to the world that justice for the non-Muslims can also be obtained at the Syariah Court.
In order to prove this, a non-Muslim must first be made to submit to the jurisdiction of the Syariah Court. Failure to bring a non-Muslim to the Syariah Court would tantamount to failure to reveal to the world how Islamic jurisprudence would deal with a non-Muslim and receive justice.
In short, there is an attempt by some authorities to compel a non-Muslim to submit to the Syariah Court so that it will have an opportunity to vindicate its propaganda that Islamic law is impartial to all and sundry. " - From Screenshots: Read here for more
Excerpts:
"... We are heading for a constitutional crisis should members of the Bench decide to abandon their role in protecting and defending the Federal Constitution, the highest law in this land.
In a secular country, most recently affirmed and hitherto uncontested in a landmark case in 1986, that adopts a dual-system in legal practice, namely the Civil Law for non-Muslims and the Syariah Law for Muslims, members of the Bench are slowly, but firmly, passing down civil court verdicts that create precedents to instal the supremacy of the Syariah Law over the other, no matter if one of the aggrieved parties is a non-Muslim.
March 20, Bar Council's newly-elected president Ambiga Sreenevasan went on record as saying that the Syariah court should have jurisdiction only over Muslims. "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 told theSun." - Press Statement from the Christian Federation of Malaysia. Read here for more
Excerpts:
"....The Christian Federation of Malaysia views with great concern the recent decision of the Court of Appeal in the case of Subashini v. Saravanan, where she, although a non-Muslim, was urged to submit to the jurisdiction of the Syariah courts to seek recourse from the break-up of her family, when her husband converted to Islam.
It is troubling to note, and indeed of great concern to all Malaysians, that what is clearly stated in the Federal Constitution, that the Syariah courts shall have jurisdiction only over persons professing the religion of Islam [Schedule 9, List 11 (1)], is now being extended, by the court decision, to include non-Muslims.
The Christian Federation of Malaysia respects the Federal Constitution to be the supreme law of the country [Art 4 (1)], and therefore, it must guarantee the right of all non-Muslim Malaysian citizens to find justice served in the civil courts of the country.
In view of this development, the Christian Federation of Malaysia joins with all other likeminded Malaysians in raising our concern to the government. Decisions like this impact negatively on the social fabric of Malaysia.
We therefore, call on all elected members of Parliament to do everything within their means to defend our Constitution, and to safeguard the right of non-Muslim citizens to find remedy and justice in the civil courts in matters pertaining to civil rights and liberties...."
These are the individuals who were appointed as judges deciding on the fate of Malaysians.
JUDGES OF THE FEDERAL COURT OF MALAYSIA (As at 24 January 2007)
1. Dato' Abdul Hamid bin Haji Mohamad
2. Dato' Alauddin bin Dato' Mohd. Sheriff
3. Dato' Arifin bin Zakaria
4. Dato' Bentara Istana Dato' Nik Hashim bin Nik Ab. Rahman
5. Dato' Augustine Paul a/l Sinnappen
6. Dato' Abdul Aziz bin Mohamad
7. Dato' Haji Hashim bin Dato' Haji Yusoff
8.Dato' Azmel bin Haji Maamor
JUDGES OF THE COURT OF APPEAL OF MALAYSIA (As at 24 January 2007)
1. Dato' Sri Ramachandra a/l Ramasamy Gopal Iyer
2. Datuk Haji Mokhtar bin Haji Sidin
3. Datuk Denis Ong Jiew Fook
4. Datuk Wira Haji Mohd Ghazali bin Mohd Yusoff
5. Tengku Dato' Baharudin Shah bin Tengku Mahmud
6. Dato' James Foong Cheng Yuen
7. Datin Paduka Zaleha bt. Zahari
8.Dato' Zulkefli bin Ahmad Makinudin
9. Dato' Low Hop Bing
10 . Datuk Haji Suriyadi bin Halim Omar
11. Dato' Md. Raus bin Sharif
12. Dato' Abdull Hamid bin Embong
13. Datuk Zainun bt. Ali
14. Dato' Hasan bin Lah
15 Datuk Heliliah bt. Mohd Yusof
JUDGES OF THE HIGH COURTS IN MALAYA AND SABAH AND SARAWAK (As at 24 January 2007)
1. Datuk Ian Chin Hon Chong
2 . Dato' Vincent Ng Kim Khoay
3 . Dato' Haji Abdul Malik bin Haji Ishak
4 . Dato' Selventhiranathan a/l Thiagarajah
5 Dato' Mohd. Hishamudin bin Haji Mohd. Yunus
6 . Dato' Kang Hwee Gee @ Kang Keng Beng
7 . Dato' Nihrumala Segara a/l M.K. Pillay
8. Dato' Abdul Kadir bin Musa
9. Dato' Tee Ah Sing @ Tee Boon Hooi
10. Datuk Abdul Wahab bin Patail
11. Dato' Abu Samah bin Nordin
12. Dato' Jeffrey Tan Kok Wha
13. Dato' Azhar @ Izhar bin Haji Ma'ah
14 . Dato' Wan Adnan @ Addinan bin Muhamad
15. Dato' Muhamad Ideres bin Muhamad Rapee
16. Datuk Sulong bin Matjeraie
17. Datuk Clement Allan Skinner
18. Datuk Ramly bin Haji Ali
19. Datuk Ahmad bin Haji Maarop
20. Dato' Sulaiman bin Daud
21. Dato' Thiripurasingam a/l Veerasingam
22 . Datuk Zakaria bin Sam
23. Datuk Syed Ahmad Helmy bin Syed Ahmad
24. Datuk Su Geok Yiam
25. Dato' Balia Yusof bin Haji Wahi
26. Dato' Zainal Adzam bin Abd.Ghani
27. Dato' Alizatul Khair bt. Osman Khairuddin
28. Tuan Mokhtaruddin bin Baki
29. Dato' Abdul Aziz bin Abd.Rahim
30. Sangau Gunting
31 . Puan Lau Bee Lan
32 Datuk Siti Mariah bt. Haji Ahmad
33. Dato' Wan Afrah bt. Dato' Paduka Wan Ibrahim
34. Dato' Haji Mohamed Apandi bin Ali
35. Datuk K.P Gengadharan a/l C.R Nair
36. Datuk Linton Albert
37. Datuk Zaharah bt. Ibrahim
38. Dato' Azahar bin Mohamed
39. Datuk Mohamad Zabidin bin Mohd. Diah
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