Wednesday, March 21, 2007

Ball in civil courts, but balls were missing?

Predictably, when the Court of Appeal dismissed (by a 2 to 1 decision) the appeal of a Hindu woman seeking to stop her converted-to-Islam husband from also converting their son to his new religion, there was outrage (or quiet content, depending on whether one sympathises with the wife or husband).

Muhammad Shafi Saravanan Abdullah (that’s the new moniker of the man who embraced Islam last year) also commenced proceedings at the syariah court to dissolve the marriage to his Hindu wife.

an astonishing judgement, Justice Suriyadi Halim Omar said it "made no sense" for the wife, Subshini, to argue that, according to the constitution, the syariah court was only for Muslims.

Isn’t it? I must say I have always been under that impression, that the syariah court would be only for Muslims on Islamic issue, but what the hell do I know, not being a judge. And why did his honour say that a Hindu’s refusal to acknowledge the authority of an Islamic court "made no sense"?

Was he implying that Sharia has been declared as the only legal code governing the legal system of Malaysia? If so, then he would be out of a job.

But Justice Gopal Sri Ram, in a dissenting minority decision, said the syariah court only had jurisdiction where all parties were Muslim. In the Subshini case, the wife was Hindu.

Sympathisers of the wife fear she won’t stand a snowflake’s chance in hell with the syariah court. Invariably, the judges were accused of abdicating their responsibilities for cringing in cases involving a non-Muslim wrestling with an Islamic issue.

The usual calls were voiced to remind male members of the Malaysian civil judiciary not to forget they have balls. Last year, former Attorney-General Abu Talib Othman (now Suhakam Chairperson) made the same testicular reminder in the case of M Moorthy, which I blogged in
SUHAKAM Chairman: "Civil Court Judges Lack Balls".

Abu Talib said he saw the problem of any civil court abdicating its responsibilities as that of those judges lacking the courage to act independently of the Executive (ie. PM & Cabinet). He averred that the judges failed to apply the relevant provisions for non-Muslims with initiative, justice and more guts instead of waiting for a political nod from the PM.

Abu Talib even accused the judges of civil courts of worrying about their promotional prospects as the possible reason for lacking the courage. He 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.”

In other words, what he said was the moment those civil court judges detected the faintest whiff of any Islamic element, even though the Islamic connection wasn't the core issue, they would freeze into gutless abdication of their legislative juridical responsibility.

That had been what human rights lawyer Malik Imtiaz said too. When he told Abu Talib about judges who admit to being Muslims first rather than civil court judges, the latter advised him to report the matter and if there was evidence, those judges should be removed.

He said:
“They are unfit to be judges, then. Judges should remember their constitutional oath to protect and uphold the Federal Constitution as the supreme law of the land.”

malaysiakini reader JC Francis accused the Appeals Court of human rights violation, by denying Subshini, a non-Muslim of her fundamental contitutional rights when it passed a judgement that effectively imposes on her the eventual judgement of the Islamic syariah courts.

Apart from the current controversy of a civil court (by a 2 to 1 majority) despatching a Hindu to be judged by a syariah court, presumably because such a proselytising move of earth-shaking constitutional significance “makes sense” to his honour, I also wonder a number of times why such traumatic split marriages as a result of religion usually happened to Indian Malaysians.

Or am I wrong?

Death threats against apostasy lawyer


  1. Ktemoc, you might want to read Malik Imtiaz's post today ( on Article 11 which explains what the coalition is all about and how it relates to cases like this.

  2. Judges do not exercise legislative responsibilities.

  3. Thanks MM. Good article.

    Thanks, Prometheus - should have been juridical.

  4. This comment has been removed by a blog administrator.

  5. If we have lots of people like __earth, Malaysia will be destroyed by civil war.

  6. one thing about being a judge in a civil court, is that you are limited to the constitution/legislation(or whatever you call it). judgement is based on the case. and the best thing for a civil court to do here, is to let the sharia court decide, since it now involves something more than just a civil case. it involves the islam, it's unfair to think that a muslim court cant give a fair trial to the non-muslims. we should never think of it that way, or nothing will be fair. courts are for justice.. and judges should be fair. i think the decision is self-explanatory.

    judges are always condemned. thats normal. but we shouldn't be too quick to say things like they should resign for not being unfair. again, whatever decisions made, surely the judges have hard facts to support them.

  7. A Sharia court is a Pan-Muslim court where a non Muslim cannot be a judge as his opinion does not carry weight. This is because non Muslims are kaafir, an Arabic word meaning denier of the truth.

    So, Shariah court can never be impartial and must be abolished completely and replaced with a multi-faith Civil Court, such as EU Court of Human Rights.

  8. we still need to consider that malaysia is an islamic country, and we should respect that very fact. plus, majority of the population is muslims, and they certainly deserve to have a court to solve any problems of theirs that concern the religion. although islam is a very simple religion, it is beyond what other people actually know. a muslim is bound to follow certain rules that only a muslim can understand. if we completely abolish the syariah court, then a lot of things will become unsolved, since muslims believe that in certain cases, only islam can can solve them(they have complete rules in the Koran that they need to follow).

    either we like it or not, we have to recognise islam as the first religion in the country. or wherever we live, we have to abide to the rules that country impose on us. if we dont, then surely people will be fighting each other all the time. anyway, yes, a non muslim cant be the judge in syariah court(due to the fact that islam believes in one God and etc and only a muslim should judge a case that uses the Koran as the guidlines), but a muslim judge should always be fair to muslims as well as to the non muslims. as far as islam is concerned, that is what is being taught.

  9. KTemoc, kindly delete the comment made in my name. Specifically, comment made at 9:21 AM, March 23. It's done by an impostor.

  10. I've deleted the comment by one so-called _earth who argued why he(?) supported the civil court's 2-1 decision in the Subshini's case. The authentic (and authenticated) _earth wrote in to alert me to a naughty imposter.

    Well, to the mischievous person, may I paraphrase Lady Macbeth "Out, out damn spot! Lord _earth doth this way come!"