In the wake of the majority decision of the Court of Appel 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 (MCCBCHST), 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 S. Shamala, 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. Following that, the widow of Everest hero, the late 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 Honorable Prime Minister 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. We regret that our Civil Courts have continued to fail in their constitutional duty to protect the rights of all Malaysians, including non-Muslims, as can be seen in this latest case.
In Subashini’s case, the husband converted to Islam and converted the elder 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 her 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 cost, 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 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 the grounds of judgment of the learned 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 Malaya 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 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 Syaria 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 pass laws to safeguard the rights of all Malaysians, so as to ensure non-Muslims have full and proper access to justice.
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