Malaysia: Perspectives: The Subashini case

Malaysian Bar / Malaysiakini / NST
News and commentary on a Hindu woman, Subashini, who launched an appeal after being told to go to the 'Syariah Court' in her dispute with her Muslim convert husband over her matrimonial and custodial rights.
[1] Federal Court completes Subashini hearing

The decision of where jurisdiction is vested should be based in the enacted law from which the matter arises, lawyer Malik Imtiaz Sarwar told the Federal Court today as it wrapped up its hearing on the R Subashini case. Representing secretary Subashini, Malik told the three-member Bench led by Justice Nik Hashim Nik Abdul Rahman that recent case law held that courts have to consider the relevant legislative provision said to vest jurisdiction in the respective courts.

“Jurisdiction is vested in the High Court and syariah court by enacted law. The marriage between Subashini and her husband was made under civil law, Law Reform (Marriage and Divorce) Act 1976,” he said.

“The court must follow this decision unless it can be established that the decision (in those case law) is wrong, uncertain, unjust, outmoded or obsolete.”

Subashini, 28, a Hindu, is trying to stop her 31-year-old husband T Saravanan - who now goes by the name of Muhammad Shafi Saravanan Abdullah - from taking matrimonial proceedings to the Syariah Court.

Her battle began when her husband converted to Islam in May 2006 and converted their eldest son, Dharvin Joshua, 4, as well.

The husband then launched proceedings in the Syariah Court for divorce and custody of their second son, Sharvin, 2. He is represented by Mohamed Haniff Khatri Abdullah.

Malik also rebutted Haniff’s earlier argument that Section 51 of the Law Reform (Marriage and Divorce) Act 1976 (LRA), which governs civil marriages, was unjust and unconstitutional.

The provision states that only a non-Muslim spouse can become the petitioner in a divorce petition and applicant in the civil court, while the Muslim spouse is compelled to remain as a respondent.

“Section 51 was drafted to protect women and children against (the actions of) Muslim converts. The husband cannot shield himself from responsibility under LRA by shielding himself behind Article 121(1A).

“Conversions such as his (Muhammad Shafi’s) could undermine the legislative scheme put in place for all the parties including the children.”

Article 121(1A) states that the civil court has no jurisdiction on matters under the purview of the Syariah Court.

Parent’s right

On the issue of Dharvin’s conversion, Malik noted that Article 160 read with the 11th schedule of the Federal Constitution provides that words in the singular also includes the plural and vice-versa.

Muhammad Shafi has contended that he had a right to convert his child because Article 12(4) states the right of a ‘parent’ to determine the religion of a child.

“Article 12(4) entrenches the right to choice of religion of both parents. This is consistent with guarantee of gender equality in Article 8(2),” he said.

After he concluded his submission, Malik was quizzed by judge Azmel Ma’amor about the position of Islamic law in the country and whether remedy is afforded for Muslim converts in civil law.

Malik explained that, for religious law and rulings to have an enforceable effect on an individual, it must first be codified. Any law that is not codified is not recognised by the courts and is therefore not enforceable.

The other judge presiding over the case is Abdul Aziz Mohamad.

The Bench reserved judgment, saying it would require more time to go through the written submissions on the appeals concerning the divorce and custody dispute.

“There are too many points in law to be considered. We will need more time to look at it, the decision will be on date to be fixed,” Nik Hashim said.

By: Soon Li Tsin

24 September 2007


[2] Federal Court to deliver judgement tomorrow in two landmark cases

The Federal Court is to deliver judgement tomorrow in two landmark cases — one involving a suit by the Malaysian Bar challenging the appointment of a law lecturer as a judicial commissioner and the other an appeal by a Hindu mother of two who was told to go to the Syariah Court in her dispute with her Muslim convert husband over her matrimonial and custodial rights.

The Federal Court reserved its judgement on Oct 22 on the interpretation of the Federal Constitution in the suit brought by the Malaysian Bar challenging the appointment of Dr Badariah Sahamid as a judicial commissioner.

Court of Appeal president Datuk Abdul Hamid Mohamad (currently Chief Justice), presiding with Federal Court judges Datuk Nik Hashim Nik Ab Rahman, Datuk Hashim Yusoff, Datuk Azmel Maamor and Datuk Zulkefli Ahmad Makinudin, reserved judgment after hearing the submissions.

The Malaysian Bar wants the appointment of Universiti Malaya lecturer Dr Badariah declared null and void and of no effect on the grounds that the appointment contravened Articles 122AB and 123 of the Federal Constitution which required a person to be a practising lawyer for 10 years before he or she could be appointed as a judicial commissioner.

In the custody case, R.Subashini, 29, a former secretary, is appealing the Court of Appeal’s 2-1 majority decision on March 13 ruling that her husband Saravanan alias Muhammad Shafi Abdullah, 32, could go to the Syariah Court and commence proceedings to dissolve their marriage.

The appellate court held that the Civil Court cannot stop a Muslim convert from going to the Syariah Court to dissolve his marriage with his non-Muslim spouse or from initiating proceedings relating to custody of their children.

Subashini had brought her appeal to the Court of Appeal and Federal Court in an attempt to reverse the Family Court’s decision to set aside her ex-parte injunction to temporarily prevent Saravanan from commencing proceedings in the Syariah Court over their marriage or conversion of their younger son.

They have two children. Saravanan claims that the elder child had converted to Islam with him.

On Sept 24, Federal Court Judge Datuk Nik Hashim Nik Ab Rahman, who headed the three-man bench, said the issues involved many constitutional points and the court needed time to consider the submissions of both parties. The other two judges were Datuk Abdul Aziz Mohamad and Datuk Azmel Ma’amor.

26 December 2007


[3] Upcoming decision in the Subashini case

The fate of whether an Indian Hindu wife can seek justice in the civil courts - despite her Islam-convert husband initiating divorce proceeding in the syariah courts - will be known tomorrow. The Federal Court - the country’s highest court - will announce their decision three months after lawyers from both sides of the controversial case made their final arguments.

The three-member panel comprising justices Nik Hashim Nik Ab Rahman, Abdul Aziz Mohamad and Azmel Ma'amor will decide whether the civil or syariah court is more authoritative on the issue of divorce when one spouse converts to Islam - an issue that has been a long-standing moot point in the trial.

Subashini, 28, is trying to stop her 31-year-old husband, T Saravanan - a Hindu who has converted to Islam and assumed the name Muhammad Shafi Saravanan Abdullah - from taking their divorce and custody proceedings to the Syariah Court.

Saravanan converted in May 2006 along with their eldest son, Dharvin Joshua, 4. The husband then launched proceedings in the Islamic syariah court for divorce as well as custody of their second son, Sharvin, 2.

During her appeal to the lower Court of Appeal on March 13, justices Suriyadi Halim Omar and Hassan Lah - who made the majority 2-1 decision - told her to take her case before the Syariah Court instead, while justice Gopal Sri Ram dissented.

According to the majority decision, the injunction sought by Subashini was unnecessary because the Syariah Court is competent enough decide on the matter. However, on March 30, Subashini was granted an interim injunction by the Court of Appeal restraining Saravanan from pursuing his claims in the Islamic court.

The injunction also effectively restrained him from converting their youngest son to Islam and from pursuing his custody claims in the Syariah Court.

It was also held in the landmark ruling that a Muslim could apply to the Islamic court to convert his or her underage children without permission from the non-Muslim spouse.

Three possible outcomes

There are three likely possible outcomes from the Federal Court tomorrow:

1. The court may decide against Subashini on technical grounds - over the date of Subashini's divorce petition which was within three months of her husband's conversion date.

According to the law, the petition should be filed three months after the conversion date. Subashini argued that she was not aware of the date of her husband’s conversion. If so, the case will be thrown out and lawyers can choose to file her divorce petition again.

2. The court may decide against Subashini on substantive grounds - that the Syariah Court has jurisdiction and orders her to take her case there. This effectively rules that civil courts have no say in conversion cases especially after syariah proceedings have commenced.

3. The court may decide for Subashini - she will get remedy in civil courts, her husband may not proceed further in syariah courts and he has to go back to civil courts because their marriage was originally solemnised under civil law.

Whatever the Federal Court decision, it will be considered a landmark judgment.

Aftershocks from Joy

This decision will be the second time the apex court is to decide on a matter involving the vexing issue of religious freedom.

Previously, the Federal Court held that the jurisdiction on issues concerning a Muslim who wants to convert to another religion lies with the Syariah Court.

In the landmark judgment by former chief justice Ahmad Fairuz Sheikh Abdul Halim, Lina Joy was held to remained a Muslim and her religious status cannot be removed from her identity card.

Born an ethnic Malay Muslim, and called Azlina Jailani, Joy was introduced to Christianity in 1990.

It has left her fighting authorities, first for her new name to be put on her identity card, then to have her former religion removed.

The controversial judgment has left the nation divided over one's freedom of religion as enshrined in Article 11 of the Federal Constitution.

By: Soon Li Tsin

26 December 2007


[4] EDITORIAL: Irreconcilable differences

"A divorce is like an amputation; you survive, but there's less of you," wrote the novelist Margaret Atwood. Although the law courts attempt "justice" in the break-up of a marriage, in reality nothing can assuage the pain and loss of a family and home torn asunder. In Malaysia, however, the already messy business of a matrimonial dispute is enormously compounded should one spouse choose to convert to Islam, which lands both parties in the grey area between two sets of laws -- the secular and the syariah. On Thursday, the Federal Court tried adroitly to find a way through the legal conundrums besetting R. Subashini, whose estranged husband T. Saravanan had become a Muslim, converted one of their two children and was seeking an annulment in the syariah courts.

The Federal Court's 2-1 split decision was a fair reflection of its dilemma. To widespread relief, the justices were, first and foremost, unanimous in deciding that the civil courts had jurisdiction over unions under the Law Reform (Marriage and Divorce) Act 1976. Indeed, it would be ridiculous, and grossly unjust, for a marriage, or any other contract, made under civil law to be liable for dissolution under a different law. Although the Federal Court rejected Subashini's application for an injunction to stop her husband from going to the syariah courts, it was but on a technicality, and she was allowed to refile her case. On the other hand and somewhat confusingly, the judges also held that her husband's recourse to syariah law was not "an abuse of process" because he was a Muslim. In the matter of the child's conversion, the judges decided, heartbreakingly for Subashini, that the consent of only one parent was necessary.

Even Solomon would have found it hard to trailblaze any middle ground in adjudicating on 4-year-old Dharvin's faith to the satisfaction of such an intransigent mother and father. But more significant was the judges' reluctance to conclude on the nub of the issue: whether jurisdiction ultimately belongs to the civil or syariah courts in cases epitomised by Subashini's. They did their best, weighing one against the other while sticking to the constitutional dictum that both courts were of equal standing. The judges allowed Subashini and Saravanan to pursue their separate avenues for redress, without intimating what might happen should the two paths conflict. Until there is more clarity in the laws for the couple's particular circumstances, they will have to go through another round of litigation before their travail can come to a close.

30 December 2007