Thursday, March 22, 2007

What's Going On?

I would have thought that with all that came to light last year – through the Article 11 initiative, and the controversy surrounding it, and the various cases that went to court from Murthi to Lina Joy as well as those that did not make it court, Rayappan for instance – 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, rather than divisive, 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

On December 28th 2006, I appeared for a Hindhu lady, X, in the Children’s Court. The Children’s Court is a specialized court dealing with matters affecting children under the Child Act. The Child Act was a law put in place to consolidate and amend the laws relating to the care, protection and rehabilitation of children to fulfill obligations taken on by the Malaysian Government in acceding to the UN Convention on the Rights of the Child.

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.

At about the same time, the Welfare Department received an anonymous tip-off about the 3 children suffering emotional abuse at the hand of their natural mother, X. This was despite the 3 children not having lived with X for a significant period before the tip-off. The 3 children were taken into protective custody by the Welfare Department from their step-mother and placed in a welfare home. The Welfare Department obtained an urgent ex-parte Order from the Children’s Court for this purpose.

Under the Child Act, the Children’s Court is required to then consider its decision more thoroughly with the benefit of expert reports and a report by the Welfare Department in a hearing. It is at this hearing that I appeared for X, along with her very capable and committed solicitor, Mr K Shanmuga.

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. This does not mean that the State is without powers to intervene where necessary. This is done trough the Courts which are recognized as having a protective jurisdiction over children, all children being wards of the court. The Court can make orders giving custody and guardianship to persons other than natural parents where such orders are necessary to secure the best interests of the child. Were it to be otherwise, children would be left in the control of abusive or grossly neglectful parents, and suffer for it. As one can readily appreciate, this is not a power that is easily invoked and the standard of proof is a high one. Where this power is provided for under statute, the necessary elements must be made out.

In the case of X, the contention of the Welfare Department was that there was emotional abuse, a ground provided for under s17(1)(h), Child Act which reads:

A child is in need of care and protection if-

there is such a conflict between the child and his parent or guardian, or between his parents or guardians, that family relationships are seriously disrupted, thereby causing him emotional injury;

Emotional injury is defined as “substantial and observable impairment of the child's mental or emotional functioning that is evidenced by, amongst other things, a mental or behavioural disorder, including anxiety, depression, withdrawal, aggression or delayed development

It was as such necessary for the Welfare Department to produce evidence to show that there was a substantial and observable impairment of the 3 children’s mental or emotional functioning. The Welfare Department did not produce any such evidence. It relied on a report by a pediatrician who declared that the children were not physically injured nor was there any observable emotional injury. A child psychologist’s report was not furnished.

The step-mother was represented. The Children’s Court was empowered to give temporary or permanent custody to any party the Children’s Court thought fit. Counsel for the step-mother emphasized the fact that the children were muslim. In response, I argued that the status of the children as muslims was premised on a wrongful conversion as they were minors and the consent of X had not been obtained as required under the Constitution (this is a settled principle of law, decided by the Supreme Court in a case referred to as In Re Susie Teoh). In any event, I argued, the issue of their being Muslim and their mother not being was not one which could be characterized as amounting to emotional injury under s17(1)(h). There was further the complete lack of factual foundation to the suggestion that there had been emotional injury as the children had not been with their mother for some time.

I thought it was plain and obvious. In mid January, the Magistrate disagreed with me (and in fairness to him, there were 2 non-Muslim advisors to the court). The step-mother was given custody. 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

On January 4th 2007, I appeared with Haris Ibrahim and Edmund Bon in the Federal Court. We were there 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. I have written elsewhere on this blog about the issues that arise (see the posting “Of Fatwas And Precepts”) and will not repeat myself here. 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.

As has been explained in the “Fatwas” posting challenges of this nature are taken out directly in the Federal Court pursuant to a provision of the Constitution which specifically provides for challenges on grounds of legislative competence. The challenge is taken in 2 stages. In the first stage, the Federal Court must be shown that the applicant has legal standing (locus standi) and that there is an arguable case. The second stage is the substantive stage.

It is common for a single judge of the Federal Court to sit at the first stage. I appeared for Zaid Ibrahim in the challenges he mounted against Kelantan and Trengannu in connection with the Hudud (Islamic Criminal Law – prescribed offences) Enactments in both states. As I recall, a single judge sat for the leave hearings for both applications.

In 2005, similar questions had arisen in connection with the relevant Trengganu Islamic Criminal Law Enactment. As such, a similar challenge had been mounted by Sulaiman Takrib. Both Haris and I appeared for Sulaiman Takrib and obtained leave before a panel of the Federal Court, comprising Tun Fairuz (the current and then Chief Justice), Dato’ Richard Malanjum (the current Chief Judge Sabah & Sarawak) and Dato’ Alauddin Sharif in December 2005. The same judges heard the substantive phase in June 2006, shortly before Lina Joy.

As the Haji Kahar challenge was on similar footing (though different for having been filed in connection with Selangor laws), we got in touch with the Attorney General’s Chambers and came to an agreement. We would agree to the Government of Malaysia intervening (in effect, the Attorney General). Leave would be agreed to. There was nothing unusual about this as we had shown in the Sulaiman Takrib challenge that 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. Submission took more than an hour and was, in my view, heavy going. 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

On January 8th and 9th, I appeared for Subashini in her now notorious appeal. Haris and Shanmuga appeared with me. 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 significant that neither of the 2 majority decisions refers to Tang Sung Moi nor questions or considers the validity and effect of the provision of law that allows a non-Muslim party to a marriage to petition the High Court for a decree of divorce. In highly technical decisions, both the majority decisions reject Subashini’s right to apply for a preservation of status quo. 1 of the 2 judges quotes from the Quran to emphasise the fairness of the syariah law in an attempt at consolation (please read the judgments for their full term and effect).

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.


What’s Going On?

I ask you.

MIS

15 comments:

Anonymous said...

salam Bro,

Q 1.Do Prof.Aziz Bari has a blog?

Q 2.What is the the precise defination of Penal Code 121 plse?

T.Q

apacer said...

You are (may be) right in your opinions, submissions and constructions of the constitutional. But why the majority of the judges could not agree with you? what's going on (wrong)???

kittykat46 said...

Hi MIS,
This is a very dangerous slippery slope the courts are on, which can do serious harm to racial and religous relations in this country.

All these decisions seem to indicate the Judges are of the opinion whenever there is a family law dispute between a Muslim and a non-Muslim, the Civil courts are actually SUBORDINATE to the Sharia Courts, because they always decline to act and refer the case to Sharia courts.
I don't think this was ever the intention of the Constitution and the often mentioned "Social Contract" upon which this country's independence was based.

Anonymous said...

Hi, I read your article with interest. 1 question came to mind: how do you convert a child to become a muslim?

Anonymous said...

Malik keep on fighting. I salute you and your comrades for all the efforts. Please keep the constitutional spirit alive and i will pray for you and your comrades. You will be remembered forever for your courage and selfless efforts without regard to race, colour and religion. Take care and god bless you ...Ramesh

Malik Imtiaz Sarwar said...

Dear all,

I have had to reject some comments on the basis that they were couched in terms and language which crossed the line, sub judice and otherwise. Opinions are fine but help me publish them by stating them constructively. And remember, we are talking about the Judiciary. Sorry to those who were moderated out. I am prepared to fight the fight but constructively.

MIS

Malik Imtiaz Sarwar said...

I am not sure if Prof Aziz Bahri has a blog. Penal Code, s121 provides for the offence of waging war against the Agong or a Sultan. This is sometimes referred to as treason.

Frank said...

Dear MIS

Could kindly clarify so that I can put things in perspective: understanding:

Case 1 - Is the Magistrate sitting in the Children's Court on the case a Muslim?

Case 2: Are 3 judges of the 5 judges sitting in the Federal Court on the case Muslims?

Case 3: Are the 2 judges of the 3 sitting in the Court of Appeal on the case Muslims?

Thanks

amelly said...

The decisions are no doubt, disappointing. But on second thought, without such nonsensical and appalling decisions, we will not be alerted of how defective our legal system has become of.

No matter how dreadful the situation is now, I still find hope in it and I trust the situation thus far has not hindered your effort and perseverance to continue fighting for what you believe in. And so, the battle continues.....

Anonymous said...

hey malik
heard a lot about u, first time i am actually coming across ur blog. from what you have written the first case sounds absolutely ridiculous, i mean there shouldnt even be a question about the mother having custody of the children. well anyway keep up the brave work, you seem to be one of the few people who actually stand up for whats right even though the powerful dont like it.

frank said...

amelly and all

The fight should NOT be that of MIS or lawyers. The fight should be by all right thinking malaysians.

We are talking about the sanctity of the Federal Constitution, the document that is meant to forge this nation into one.

The meaning of being Malaysian is constructed in ALL articles of the Constitution and we should REJECT and condemn if any is being trampled or compromised.

The worst thing that these cases have shown in Malaysia, is that the sanctity of the Constitution was molested, raped and being insulted by the very Branch of democracy meant to protect it ie The Judiciary.

It is already bad enough to have the Executive trampling and the Legislative being maimed by the Executive to protect the Constitution. In fact it seems the three Branches of democracy are out to treat the Federal Constitution like criminals do,tearing apart to suit their individual interests.

I certainly have very seriously concern when the majority ruling of the honorable justices make decisions that obviously DISREGARD the relevant articlces Federal Constitution, and with their judgements based on their own PERSONAL and RELIGIOUS leanings and sentiments, especially in these religious cases.

The problem lies not so much in the judges themselves, who are being promoted from the Govt service, but in the actual selection and placement procedures of candidates to the Bench.

I would even suspect that promotions to the Bench fall under the requirements of NEP, ie there must be racial quotas even for judges.

Thus the Bench is NOT seen now as a Third Branch of democracy, but another arm of the Executive with some justices acting like BUREAUCRATS.

I would have excuse adminstrative decisions of bureacrats to have shown biases. But coming from the Justices and judges etc, it is simply UNACCEPTABLE, on any count.

Therefore, we as voters and citizens should not be surrendering our basic principles of human rights and citizen rights by only voicing support to MIS and his team. We must be pro active to prevent such abuse of the Federal Constitution by any quarter, more so from one of the three Branches of democracy.

Unless we do so to protect the Federal Constitution, our existence and self-knowledge as a Malaysian is under severe threat.

Or are we turning into a Fascist State when even the judges seem to fail to protect the basic provisions of the Federal Constitution on the rights of individual Malaysians, irrespective of race, sex and religion.

amelly said...

Dear Frank

The fact that the fight should be by all Malaysians is not challenged.

However, any positive comments left here in this blog in support of MIS and his team of lawyers, whether by myself or any others, should not in any way be viewed as a surrender of, in your words, 'our basic principles of human rights and citizen rights'. This is not the case. ‘Unseen’ participation does not necessarily mean ‘No’ participation.

Next, I do accept that the judiciary is in a worrying state – with the trend of inherent uncertainties in the decisions being handed down and as a result, eroded our confidence in the judiciary, whether as lawyers or otherwise. However, we must also concede that not all citizens are fully aware of this imminent threat against the nation. Without apprehension of the same, I doubt that there can be effective participation (on the part of the citizens) in the process – but do not misunderstand me to mean that we shall all fail.

As such, it is my view that the role of lawyers, whether MIS and/or his team, remains to be of vital importance as front-liners in the battle.

Anonymous said...

It is really sad that the muslim judges are not impartial and are swayed by their personal religious beliefs. How then can the non muslims get justice?

Anonymous said...

Hi MIS,

First up, hats off to a brave Malaysian.

I've read what the rest have had to say. I cannot convey my thoughts as orderly and as articulately as the rest.

However, I do understand this. It is very disturbing indeed in our country, that the constitution and laws are put in place, but are not above individuals. In the cases yo have highlighted, I see clearly that justice will not get served to non-Muslim parents or any non-Muslim for that matter, once the Syariah Court comes into play.

As a young Malaysian, I have always been told by my parents and family that in this country, I have to work extra hard to survive, and that I would be squeezed, as far as the law permits. Having so many friends of all races, I never really took their words too seriously. I told myself that it just happens to be a little tougher and that laws are in place to protect me.

As a working adult now, looking at the state of affairs in the country - the corruption, the open defiance, and hearing what the foreigners have to say about my country that I grew up proud of, I am ashamed and afraid. Ashamed to face the people that once I told off for not having known my beloved country. Ashamed as my country makes headlines for all the wrong reasons. Afraid for the future of my children. Even the constitution is being disregarded in the light of day now.

It just proves to me that I, nor my kin and kind, have a future here. Bear in mind the kind of future I seek is one of equality. I believe very strongly in reaping what I sow. That isn't the case on our beloved country is it? Here, we have institutionalised discrimination.

Just when I thought our biggest problems were corruption and the NEP, your blog has enlightened me to the happenings in court when it concerns religion.

How long more will the rakyat look the other way or not bother? What can we do to stop this rot? I have seen voting stations myself. I have seen the nonsense and trickery used to win. But of course, one is challenged to take the matter further, "kalau boleh". Boleh ke? Mungkin dulunya saya fikir boleh. Tetapi saya semakin yakin, yakin yang saya tak boleh.

I want my rights to be a Malaysian just like every other registered voter in the country. I want to be treated like a child of this earth. Saddest of all, I don't want to be treated like a third class citizen, in my own country. As you said brother MIS, we have nowhere else to turn, but tanah air sendiri.

aini said...

we should not be too quick in critiscising those higly learned judges. they were chosen through a thorough process of filtration, where only those who deserve it would get it. they know best in what they do. whatever decisions made are based on the constitutions set before them. they surely have strong reasons supporting their judgement. and in the case of whether or not a case like Subashini's should be dealt in the syariah court, there's not yet a precedent to it. there's actually a lacuna IN THE constitution itself, and the judges are not the ones to get the blame.