the case of r. subashini saravanan (part II)

UPDATED: link to lots of articles on this issue including one from asia news with heading ‘ catholic bishop wants constitution respected, christians protected from islamic law’ – read this post of beritamalaysia.

part I.

ok now i’m going to append below the 2 statements issued by the malaysian consultative council of buddhism, christianity, hinduism, sikhism and taoism (MCCBCHS) and the christian federation of malaysia (CFM).

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Court of Appeal decision on Subashini v Saravanan

In the wake of the majority decision of the Court of Appeal in the case of Saravanan A/L Thangathony v. Subashini A/P Rajasingam [Rayuan Sivil No. W-02-955-2006] we, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, are greatly disappointed that once again, the non-converting non-Muslim wife of a convert to Islam has failed to get relief from our Civil Courts. Hitherto, in the case of Shamala a/p Sathiaseelan she was told by the High Court that it had no jurisdiction to declare as unlawful her young children’s conversion into Islam without her knowledge or consent and was advised to seek the assistance of the Islamic authorities. Then the widow of Everest hero, Sgt M. Moorthy also failed to get relief from the High Court on the ground of jurisdiction.

Following an uproar from civil society, the Right Honourable Prime Minister had declared that although Article 121(1A) of the Constitution would not be amended, laws will be amended to remedy the situation. Though it has been more than a year since then, there have been no amendments to any law as yet to clarify the jurisdiction of the Courts.

It is our duty to inform the authorities that there is growing discomfort amongst the non- Muslim citizens of Malaysia, who form 45 per cent of the population, many of whom feel that the judiciary are failing in their constitutional duty to ensure the equal protection of the law for all Malaysians.

In Subashini’s case, the husband converted to Islam and converted the eldest son, aged 3, to Islam without the wife’s knowledge or consent. The husband then applied to the Syariah Court for custody of the son, again with no notice to the wife.

The wife then presented a petition for divorce and ancillary relief and applied to the High Court for an injunction restraining the husband from (i) converting the children of the marriage to Islam and (ii) commencing or continuing with any proceedings in any Syariah Court with regard to the marriage or the children of the marriage. The High Court initially granted an injunction after hearing only the wife who at that time did not know of the substance of the husband’s applications in the Syariah courts. This injunction was continued whilst the case was heard in the High Court. After the husband submitted his evidence, and after the High Court heard both parties, it refused to give the injunction. However, the High Court granted an interim injunction to the wife pending the hearing of an appeal to the Court of Appeal, known as an “Erinford Injunction”.

The majority decision of the Court of Appeal dismissed the wife’s appeal and set aside the Erinford Injunction with costs, effectively shutting the door on Subashini’s rights as a mother to prevent the Syariah court making a determination as to her marriage and as to the custody of her children. To add to her problem, the majority have ruled that Subashini, a non-Muslim, must apply to the Syariah Court, instead of applying to the High Court. Of particular concern to us is the statement by YA Dato’ Hasan Lah, JCA that the High Court and the Syariah Court must be regarded as having the same standing in this country. We are also concerned to note that in his grounds of judgement YA Datuk Suriyadi Halim Omar, JCA quoted a verse from the Quran and appeared to be elevating the role and prominence of Islamic law and the Islamic judicial system in Malaysia.

We would respectfully remind members of the Judiciary that the Federal Court, Court of Appeal and the High Courts in Malaysia and in Sabah and Sarawak are all civil courts and Judges of those courts take an oath of office to uphold the Federal Constitution, which guarantees all persons, including non-Muslims, the fundamental liberty of professing and practising their faiths in peace and harmony.

It is very clear and specific in the State legislative list in the 9th Schedule of the Federal Constitution that the “Syariah Courts … shall have jurisdiction only over persons professing the religion of Islam …”. The learned Judges in the majority appear to note that requirement in their judgments, but with respect appear to contradict themselves by then requiring the non-Muslim wife to go to the Syariah courts.

We express our objection to any requirement for non-Muslims to have to go to the Syariah Court for relief as such courts apply Islamic theological law. Religious laws cannot be applied to people who do not profess that religion. The Court of Appeal in this case and civil courts are expanding Article 121(1A) of the Federal Constitution. We are also concerned that Syariah Courts are usurping functions which are not theirs. Consequently, non-Muslims are unable to obtain relief when the Syariah Court makes an order which interferes with their fundamental liberties guaranteed by the Federal Constitution.

The Federal Constitution is the supreme law of Malaysia. Our highest court had declared in the case of Che Omar bin Che Soh v. P.P. (1988) 2 MLJ 55 that Article 3 of the Constitution was never intended to extend the application of Syariah to the sphere of public law.

We object to any interpretation of our Constitution or our laws that deprive any person of his fundamental liberties, and deny access to a non-Muslim to the High Court applying the general civil law. We urgently call on the Government to immediately make the necessary legislative amendments to safeguard the rights of all Malaysians and to ensure non-Muslims have full and proper access to justice in the civil courts.

Dato’ Chee Peck Kiat,
President
23.03.2007

 

 

Statement by CFM on the Subashini v Saravanan case

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.

Bishop Paul Tan Chee Ing, SJ
Chairman,
The Executive Committee
Christian Federation of Malaysia

Dated: 22nd March 2007

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the latest news is that subashini had been granted temporary injunction to stop her husband from syriah court action. note the word ‘temporary’.

see jeff ooi’s post on this issue. i made a comment there with a link to my part 1 post informing about the catholic church action and one commenter asked:

Lucia, this now means that the Catholic Church in Malaysia is trying to influence court decisions and is, for all practical purposes, entering political debate, right? I’m not saying it shouldn’t. All I’m saying is: everyone is fighting to have their opinion prevail over others. And one of these opinions will ultimately have to be superior to others–be it secular, religious (which religion?), or something else. In any case, some people will be happy and others will feel aggrieved. And that’s the way the cookie crumbles…

funny how she or he looks at it that way. we are trying to influence court decisions? fighting to have our opinion prevail over others? political debate? (i use ‘we’ because i’m a catholic). obviously she/he doesn’t understand what a statement or press release is – the catholic church was merely speaking up at what they perceive to be wrong – to uphold the federal constitution. (even many NGOs did spoke up). i quote a part of the statement:

As the Federal Constitution is the supreme law of the country, a person of one religion should not be made subject to laws of and governance by another religion.

simple as that, see. we are not fighting for our opinion to prevail over others. we are fighting for our rights.