Kehakiman

Wednesday December 1, 2010

Rulers can act as conciliators

Reflecting on the law
By Shad Saleem Faruqi

As the Yang di-Pertuan Agong and the Sultans are the sovereigns of all their subjects, whether Muslim or non-Muslim, they are also well placed to guard the interests of the non-Muslim citizens of the country.

FOR the last few years, several deeply painful and intractable inter-religious disputes have imposed a severe strain on our social fabric and have caused a loss of confidence in the judicial system as an impartial arbiter of inter-communal discord.

Some of the issues have important human rights implications and have a bearing on whether constitutional supremacy is subordinate to public sentiment.

The apex court had an opportunity to confront and resolve these disputes in the family law case between Shamala Sathiyaseelan and her Hindu husband Dr Jeyaganesh Mogarajah, who had converted to Islam; and had obtained the Syariah court’s help to change his infant children’s religion to his new-found faith.

The parties submitted on five contentious issues, the most important being whether civil or Syariah courts have jurisdiction over the status of a non-Muslim marriage when one party to the union converts to Islam; whether the converting spouse can unilaterally change his infant children’s religion to Islam without the knowledge and consent of the other parent; and which court has the power to determine custody and guardianship of the children and subject to what principles?

Regrettably, the Federal Court refused to hear the case because Shamala was not coming to the court with clean hands. To counter her husband’s unilateral act of converting the children, she had fled the country with them and was, therefore, in contempt of an earlier High Court ruling giving the father right of access to his kids.

Without doubt, the Federal Court had many persuasive precedents to deny relief to Shamala who was seeking judicial help without first purging herself of a manifest contempt.

However, as the dissenting judge, Tan Sri Richard Malanjum, correctly pointed out, the decisions that were cited did not rigidly slam the judicial door on a contemner. Judicial discretion could be exercised if justice so demanded.

Most people who view the law as an instrument of justice will agree that formalities should not have prevented the court from opening its heart to the plight of a fellow human whose life had been devastated for reasons not entirely her own.

On the issue of which court has jurisdiction, the populace as well as the judiciary is deeply divided. All non-Muslims are adamant that under the Federal Constitution’s Schedule 9, List II Paragraph 1, the Syariah courts have no jurisdiction over them.

The relevant portion of the Federal Constitution states that the “Syariah courts … shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph...”

The judiciary is split down the line. Many Muslim and non-Muslim superior court judges when faced with inter-religious disputes bet ween Muslims and non-Muslims are relying on Article 121(1A) to avoid hearing the case and are urging non-Muslim applicants “to be open” to appearing before Syariah courts to seek justice.

Other Muslim judges like those who adjudicated the case of Subashini a/p Rajasingam vs Saravanana a/l Thangathoray (2008) 2 MLJ 147 are acting courageously to blaze a middle path.

In the Subashini case, the parties were married under civil law and had two children aged four and seven. The husband embraced Islam along with his seven-year-old son and filed an application in the Syariah court for dissolution of his civil marriage and custody of the older child. The wife in turn moved the civil courts for dissolution of her marriage, custody of the children and ancillary relief.

The learned judges held that the civil courts continued to have jurisdiction over the husband despite his conversion to Islam because a non-Muslim marriage did not dissolve automatically upon one party’s conversion to Islam.

In a contradictory move, the court also held that by embracing Islam the husband and son became subject to Muslim personal law and eligible to seek remedies in the Syariah court.

The court also held that either father or mother had the right to convert the child to Islam. This is because Article 12(4) states that for the purpose of receiving instruction in or taking part in any ceremony or act of worship, the religion of a person under the age of 18 shall be decided by his “parent or guardian”.

The reference to the singular means that any one parent can make decisions affecting the minor’s religion.

With all due respect, this opinion is difficult to appreciate. Article 8 of our supreme charter requires equality before the law and this means that both parents must have equal rights.

In drafting the Constitution and laws it is a matter of style that generally only the singular is used. For this reason section 2(95) of the Eleventh Schedule of the Constitution clarifies that “words in the singular include the plural, and words in the plural include the singular”.

Where do we go from here? Given the apex court’s reluctance to hear Shamala’s plaints and given the country’s commitment to pluralism and tolerance, we need to heal the wounds caused by these unresolved issues. We need to rely on some institution whose unique position qualifies it to play the role of conciliator.

The Yang di-Pertuan Agong is one such institution. His Majesty could ask the Government to advise him to make a reference to the Federal Court under Article 130.

The Article states that the Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.

The Conference of Rulers is another such institution which can help to bring us together. Under Article 38(2) paragraphs (a) to (e), the Conference performs many specified executive, deliberative and consultative constitutional functions. In addition, it has the power to “deliberate on questions of national policy ... and any other matter that it thinks fit”.

The Conference is not constrained by the federal-state division of powers. It can bring to bear on any matter it thinks fit the power and prestige of its office and to provide a guiding hand.

As the Sultans on the Conference are heads of the religion of Islam in their respective States and as the Yang di-Pertuan Agong is the head of Islam in all other territories of the Federation, the Conference of Rulers is uniquely placed to deliberate on all matters that touch on Islam.

As the Yang di-Pertan Agong and the Sultans are the sovereigns of all their subjects, whether Muslim or non-Muslim, they are also well placed to guard the interests of the non-Muslim citizens of the country.

Acting under Article 38(2), the Conference of Rulers could, by resolution, set up a Judicial Committee of the Conference of Rulers to advise it on all inter-religious disputes as well as family law matters where one party is a Muslim and the other a non-Muslim.

The membership of the Judicial Committee should be mixed – three Muslim jurists and two non-Muslim scholars appointed by the Conference of Rulers for a specified term.

Upon receiving the advice of its Judicial Committee, the Conference of Rulers could then make a ruling on the matter for all parties concerned.

This proposal requires no constitutional amendment but only ad­ministrative action by the Con ference of Rulers. It would augment the role of the Rulers as bipartisan sovereigns committed to justice for all their subjects.

Another possibility is to rely on the judicial opinion in Subashini a/p Rajasingam vs Saravanana a/l Thangathoray that civil courts retain jurisdiction over a marriage solemnised under civil law.

To administer this ruling in an impartial setting, the High Court could set up a new Conflict of Laws Division (on the lines of its Mu’amalah Unit) to adjudicate on family law disputes in which one party is a Muslim, the other a non-Muslim.

Alternatively, the Government can put together a bipartisan two-thirds majority in Parliament to insert a new Article 121(1C) to the Constitution to provide for a Special Court to try cases in which there is a conflict of jurisdiction between Syariah and civil courts.

The Special Court could consist of five judges appointed by the Yang di-Pertuan Agong. The composition could be three Muslims and two non-Muslims, with at least two female judges.

The decision of the Special Court should be final and conclusive. The jurisdiction of the Special Court could be invoked by any one with locus standi provided leave of the Court was first obtained.

These proposals may help to repair our frayed social fabric and to enhance confidence in our system of justice.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Honorary Legal Advisor to USM