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
