I had lunch with a foreign friend, an Iranian Canadian, who is married to a Korean Canadian. He has been in the country for close to 10 months on work. He told me what he observed from our society. He said that while it is possible for him (a Muslim) and his wife ( a Christian) to live their matrimonial life in Canada, it will not be possible here. He said that it is a misconception to think that it is more conservative in the Middles East than in Malaysia citing his early years in Iran as an example.
The R. Subashini case and other similar cases are testimony to his observation. The Court of Appeal's majority decision in the R.Subashini case on March 13 signals a growing conservatism in our society. In the landmark decision, the Hindu woman was told by the Court of Appeal that she had to seek recourse through the Syariah Appeal Court to stop here stranged and Muslim-convert husband from dissolving their marriage in the syariah court, and converting their children to Islam without her permission. For more information, read Jacqueline Ann Surin's article here. Two Malay-Muslim judges ruled against Subashini while the remaining non-Muslim judge was for her.
According to Jacqueline, this, despite the fact that both Subashini and her formerly Hindu husband, Muhammad Shafi Saravanan Abdullah, were married in a civil ceremony in 2001, and hence, should logically and justly be governed by civil laws in ending their marriage and resolving issues such as custody and inheritance.
The newly elected Bar Council President Ambiga Sreevenasan opines that the syariah court should have jurisdiction over only Muslims "It is the Bar Council's view that where one party is a non-Muslim, the matter must be heard in the civil courts. This is in accordance with the law as it has stood for many years," she said.
I see this judgement as a dangerous precedent. Rightly pointed out by both Jacqueline and Ambiga, the syariah court should have jurisdiction over only Muslims, the recent judgement has robbed a non-Muslim party of her rights to seek a judicial recourse. This legal lacuna is seriously testing our democratic process. This process guarantees justice for all.
Unfortunately, Malaysia is moving from the respect of the federal constitution as the supreme laws of the land towards the empowerment and enlargement of the syariah court's jusrisdiction over non-Muslims.
I agree with Jacqueline's observation:
In Subashini's case, however, the civil court has gone one step further by telling a non-Muslim to submit to the syariah court. Not only is the Court of Appeal abdicating its responsibility to protect a citizen's rights andinterests as provided for by good law, it is also ignoring the Constitution by enlarging the syariah court's jurisdiction where none can exist unlessthere is law to that effect.
Such a judgment not only undermines the Constitution that this nation was founded on, it also fuels the fear that our Constitution is being hijacked by an Islamist agenda. Hence, the need to repeat the obvious. The Federal Constitution is the highest law of the land, and we would all do well to respect its supremacy.
The recent judgement only strengthens the case for an independent commission to appoint judges. There is nothing wrong with the provision of laws in this land but we need judges who are not bias. The judges must be committed to defend and uphold the spirit of the federal constitution.