Judges Must Show Courage

“How would the Muslims feel if they have to submit to a Hindu court or to any other religious court? We should not do unto others what we do not want others to do unto us. That is the ultimate test of reasonableness. That is the test of a just legal system.”

R.SUBASHINI has two children aged three and one. Her husband of five years became a Muslim convert without her knowledge. He also converted their three-year-old son. He then applied to the Syariah Court to dissolve their civil marriage and for custody of the children. This is a heartbreaking story to any mother and to any wife regardless of their religion. It is a heart-wrenching story of how very little a woman in her position can do to seek redress in our courts.

Subashini went to the civil courts, the High Court and the Court of Appeal; and both told her that herprayers will not be granted. What was she praying for? She was asking that the conversion of her son be examined again so that she may have her input considered. She also wanted the fate of her marriage to be decided by the civil courts because it was a civil marriage that she and her husband went through.

Looking at this from a layman’s point of view, one would wonder why is it so difficult for the civil courts to provide the remedy Subashini is asking for. She was not preventing him from becoming a Muslim, but surely the son is as much hers as it is his and shouldn’t the mother’s wishes be taken into account in an important matter such as the faith of her child, especially when he is so young?

As to her marriage, if at all it has to be dissolved it must be done before a court of competent jurisdiction. She is not a Muslim and yet the civil courts are not prepared to grant her the appropriate remedy. It is a strange world we live in. Simple issues become cluttered by extraneous considerations. We have had many arguments put forward by those who are experts in the law but these people do not have to endure the pain and suffering undergone by Subashini.

She was told to seek recourse in the syariah court. But any lawyer worth his salt knows that the syariah court has no jurisdiction over non-Muslims. Period. This is clearly stated in the Federal Constitution and this is no aspersion on the syariah court or an attempt to belittle or devalue the syariah court. It is a fact that its jurisdiction is confined to only Muslims. It does not matter that the justice system in the syariah court is perfect. Even if Subashini wants to submit to the syariah court, she can’t. Jurisdiction is not a question of choice or submission; it is a question of law.

Then there was the argument that the civil courts cannot grant a prohibition order in this case because the syariah court is not subordinate to the civil courts within the meaning of S. 54(b) Specific Relief Act 1950. But it is an inferior tribunal. This is not to say that Islam is inferior. It just means that under our present legal system the syariah court is like any other inferior tribunals where the High Court can exercise it supervisory powers if it transgresses the Constitution. In any event, the injunction sought was personal (against the husband) and not directed to the syariah court.

Article 121(1A) does not elevate the syariah court to any position higher than the High Court. Article 121(1A) merely states, “The courts referred to in Clause (1) [i.e. the High Courts and other inferior courts] shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.” Even where both parties to a case are Muslims, the High Court can still decide the matter which is not within the exclusive purview of the syariah court. Our judges must not shy away from deciding such cases purely because one of the parties involved is a Muslim. Otherwise the civil courts would be abdicating their responsibility to do justice. Former attorney-general Tan Sri Datuk Abu Talib Othman said, “The courts have failed to do so (interpret boldly) for the slightest unreasonable reasons in many cases where Islam is merely seen on the surface.” All we need is for our judges to be courageous.

Cases such as Subashini and M. Moorthy illustrate the anguish and suffering of ordinary people for which our legal system must find a remedy. Of course cases such as these are complex and sensitive. Lord Mackay (former Lord Chancellor of England) reminds us that “A progressive judiciary is one which pays careful consideration to the sensitivities involved in difficult issues”.

Therefore, it is up to our judges to be sensitive, brave and progressive to decide cases that come before them according to the law. Judges should not be concerned, unlike politicians about the public’s perception of a particular issue. Most of the time, the public do not know enough of the issues to truly understand and appreciate the rationale of any decision. Judges need not be politically correct; instead they should act only according to the law and the dictates of justice. That is what their oath of office requires of them.

To Muslims, I say it is unfair to expect non-Muslims like Subashini to go the syariah court even if there is perfect justice in the syariah system because the law gives her the right to pursue her remedy in the civil courts and nowhere 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 is to expect non-Muslims to submit to the syariah court.

How would we feel if it was the other way round? How would the Muslims feel if they have to submit to a Hindu court or to any other religious court? We should not do unto others what we do not want others to do unto us. That is the ultimate test of reasonableness. That is the test of a just legal system.