LAW AND JUSTICE
by K.Siladass

           

Indira Gandhi’s case, and other cases which dealt with identical problems remind us of the adage: pounds and pounds of law but not an ounce of justice. True, all the judgments in the cases where non-Muslim parents, largely mothers, have been denied any legal remedy reveal immense erudition in expounding the law; however, they do not help to solve the problems the non-Muslim parents are facing. Why should a biological mother, or for that matter a biological father be deprived of the company of their children in the name of religion?

           

For once, could all those who are concerned with the custody issues involving newly converted Muslims and non-Muslims realize that this is purely a family matter; religion is being brought in as a result of the former non-Muslim spouse who had converted Islam to bolster his or her position. We cannot ignore the suspicion that is gaining currency, and that is, by denying the affected spouse civil judicial remedy but advising him or her to go to Shariah Court is in fact a coercion on the non-converted spouse to convert and seek the remedy in Shariah Court.

            While it is correct that the State orientated Shariah Courts and the religious departments have the right to deal with Islamic laws regulating the personal affairs of Muslims within their respective States the power to regulate the personal laws of non-Muslim vests with the Federal Government, therefore, in so far as the marriage and dissolution of non-Muslims are concerned, the relevant law is the Law Reform (Marriage and Divorce) Act 1976 which is a Federal legislation. Therefore, it will be prudent to look at the dissolution of the non-Islamic marriage within the compass of the aforesaid Law Reform Act 1976.

            It is not a herculean task to amend section 51 of the Law Reform (Marriage and Divorce) Act 1976, and make it plain that the spouse converting to Islam shall not do anything to change the religion of the children of the marriage under the age of eighteen unilaterally until the issue of custody has been determined by the High Court. In addition, Article 121(1A) could also be amended to remove the current ambiguity in it and state clearly that where the matter has the question of Islamic ingredient and the parties are Muslims, then, the High Court shall have no jurisdiction.

What we are looking for is a solution, not the prolongation of an unrewarding conflict which traumatises every Malaysian. The clash of jurisdiction is judge-made and it can be averted provided mature common sense prevails and not treat the matter as a challenge to Islam. What we need is a humanitarian approach.

Dated this 8^th January 2016

HIGH COURT versus SHARIAH COURT

- Question of Jurisdiction

by K. Siladass

               

The majority decision of the Court of Appeal in Indira’s involving the custody of her children has suddenly triggered nationwide shock and dismay except a few whose loyalty to the constitution is suspect. Some politicians are now expressing concern which they should have done long ago, because, Indira’s case is not the first of its kind; it is a repetition of the justice having been denied in similar cases. Non-Muslim mothers have been left with no legal remedy when their husbands having secretly converted to Islam, had unilaterally changed the religion of their non-Muslim children.

                The issue as to which court, i.e. the High Court created under the Federal Constitution or the Shariah Court created in accordance with the State Constitution has the jurisdiction in a situation like that of Indira’s has been irking the Malaysians, the judiciary and the legal profession since the amendment to Article 121 was made, which removed the judicial power vested in the High Court and by inserting a new Clause (1A) which stated that the High Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.

The late Tan Sri Professor Ahmad Ibrahim in his essay “The Amendment to Article 121 of the Federal Constitution: Its Effect of Administration of Islamic Law [1989] 2 MLJ xvii has pointed out that the, “Shariah Courts shall only have jurisdiction over persons professing the religion of Islam and in respect only of the matters included in the paragraph. The Shariah Courts will therefore not have jurisdiction where one of the parties involved is a non-Muslim. For example if the mother is a non-Muslim but the father is a Muslim, the matter could still be brought to the Civil Court and disposed of therein.”

Ahmad Ibrahim has clearly pointed out the effect of the amendment to Article 121 of the Federal Constitution. Both the parties must be of the Muslim faith and the matter in dispute has Islamic ingredients to take the matter away from the High Court.

It would be appropriate at this juncture to look at the distinct features of the Civil Courts created under Article 121(1) of the Constitution and of the Shariah courts created by State Enactments. The two High Courts, the Court of Appeal and the Federal Court are creatures of the Constitution (See Article 121(1), (2) and (3) of the Federal Constitution) unlike Shariah Courts which are State creatures; their jurisdiction is territorial and limited. The jurisdiction of the civil courts extends to the whole of Malaysia but not that of the Shariah courts.

The distinct jurisdictional features of the Civil Court and the Shariah Court were explained by Tun Abdul Hamid Muhamad in Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor ([2007] 5 MLJ 101 at pages 116-117). He said that the Civil and Shariah Courts will have to look at the statute to see whether it has jurisdiction over the matter or not. Each court must determine for itself first whether it has jurisdiction over a particular matter in the first place, in the case of the Shariah courts in the States, by referring to the relevant State laws and in the case of the Shariah courts in the Federal Territory, the relevant Federal laws. Just because the other court does not have jurisdiction over a matter does not mean that it has jurisdiction over it. So, to take the example given earlier, if one of the parties is a non-Muslim, the Shariah court does not have jurisdiction over the case, even if the subject matter falls within its jurisdiction. On the other hand, just because one of the parties is a non-Muslim does not mean that the civil court has jurisdiction over the case if the subject matter is not within its jurisdiction.

Notwithstanding the clear demarcation on the jurisdiction and powers of the Civil Courts and the Shariah Courts and the authoritative pronouncements on the significant differences, another coram of the Federal Court, by a majority came up with the decision to the effect, that the Shariah Courts are also created by the Federal Constitution. This was in the case of Subashini a/p Rajasingam v Saravanan a/l Thangathoray, [2008] 2 MLJ 147. That was a decision inconsistent with the legal position in so far as the creation of the Shariah Courts are concerned.

There are many other cases like the Indira Ghandi’s where the jurisdictional issue has been raised and no satisfactory answer has been found although Civil Courts had pointed out that the legislature could and bring an end to this continuing traumatising episode. In this regard the statutory provision introduced by the State Enactments had been unhelpful because conversion of a minor could only be had, according to the Federal Constitution Article 12(4) with the consent of the parent. Since the word “parent” is used it has been assumed that the consent of a single parent would suffice ignoring the law that the ‘words and expression in singular include plural, the words and expression in the plural include the singular.’ (See section 4(3) of the Interpretation and General Clauses Act 1948 and 1967). The State Enactments vary as far as consent to convert a minor to Islam is concerned, for some State Enactments say both parents must consent and some, either parent must consent.

It is suggested that the following points be taken into consideration to put an end to this prolonging legal tussle which is not good for the people and the country as a whole. The points are:

There must be clear provisions on the issue of conversion of children under the age of eighteen. Both parents or the legal guardian must consent to the conversion of children under the age of eighteen. The Shariah court should not accept conversion by one parent who had converted to Islam when the other party to the non-Muslim marriage is still living and that marriage is still subsisting. The Shariah courts seem to be content that so long one parent is a Muslim, the child is a Muslim taking after the father. What is being ignored is the fact that the parents were non-Muslims when the child was born, and so long one of the parents remains non-Muslim his or her rights to the child’s religious upbringing is not vitiated and the High Court should decide the religious status of the child based on the wishes of the non-converting parent and also taking into consideration of the well-being of the child.

Where the marriage between converted and non-converted spouses subsists, both must be consulted and their consent obtained when the conversion of their children under the age of eighteen is accepted by the Shariah court.

Article 12(4) of the Federal Court should be amended to read as follows: ‘For the purpose of clause (3) [of Article 12] the religion of a person under the age of eighteen years shall be decided by his parents or lawful guardian.’

In so far as Article 121(1) is concerned it would be a prudent course to revert to its original position, for example, the judicial power of the Federation shall be vested in the two High Courts with a proviso that where the parties are Muslims and the matter is within the jurisdiction of Shariah court, the High Court shall have no jurisdiction.

The Law Reform (Marriage and Divorce) Act 1976 should be more specific and provide clear guidelines when one spouse converts to Islam and the other remains a non-Muslim. In this context section 51 should include the following provision:

Where one party to a marriage has converted to Islam and there are children of that marriage, and the other party, if still living, but had not converted to Islam, the converted party shall have no right to convert the children of the marriage to Islam until the voluntary consent of the non-Muslim party had been obtained.

The State Legislature of the Administration of Islamic Law Enactments should not enact any law inconsistent with Articles 11, 12 and 121(1) of the Constitution, especially when the conversion of a person under the age of eighteen arises. The consent of both parents should be a condition precedent before any conversion takes place.

Where a spouse had converted to Islam during the subsistence of a marriage contracted when that spouse was a non-Muslim the spouse who has not converted should be immediately notified and Shariah court should not take any step to invalidate that non-Muslim marriage or make any orders affecting the non-Muslim children.

Dated this 4^th January 2016

 

FESTIVALS AND GREETINGS

by K.Siladass

The advice by the Sultan of Johore that there is nothing wrong for Muslims to greet and share the joys of non-Muslims festivals is timely. Racial and religious polarisation had indeed peaked beyond our belief thus threatening to destroy the very foundation that this country was shaped into existence. The racial and religious polarisation trend began some time ago and there is no sign of it being abated.

Before the eighties the shared experience and respect amongst all races were there to see; but, since then the shared respect has lost its sheen substituted with hatred and distrust culminating along dangerous divisive attitudes.

Since Merdeka there developed a sentiment, a feeling, a desire, an understanding amongst all races notwithstanding their religious backgrounds that we are here to live and die. There was strong element of acceptance by all races, there was mutual trust and friendship was reciprocated. Where did those elements of human understanding vanish? Why did they vanish? Who was the cause for it to vanish?

We have to re-discover ourselves as human beings caring for one another, respect one another-not create a wall of hatred and nurture it.

Not long ago, the local authorities in Johore would display seasonal greeting for all festivals. Such a goodwill had disappeared. Malacca still adheres to respect all festivals of all races and religions. Could the Johore local authorities adhere and respect the Sultan’s advice and display seasonal greetings to show that we are part of a large multi-racial, multi-religion and multi-cultural society.

Dated this 2^nd December 2015.

WHERE IS PAS?

by K.Siladass

2nd December 2015

While there is much to think about the call by PKR Deputy President Azmin Ali to open the newly formed opposition coalition to receive other like minded parties such as PAS, Parti Socialis and others from East Malaysia, the difficulty seems to center upon the guidelines and terms of like mindedness.

Azmin Ali should not forget that DAP and PAS could not get along because PAS harped on the introduction of hudud although the opposition that generated was very vocal. Not only DAP but BN parties too could not agree with the introduction of hudud. PAS is insisting on hudud and was prepared to court UMNO on this issue. PAS seems prepared to sacrifice the Malaysian identity DAP and others are canvasing and showed an apparent unitive attitude towards UMNO and all the wrong things it stood for.

The non-Malay Malaysians supported PAS because of its alliance with multi-racial parties, and there was a belief PAS would tread a moderate Islamist role instead of convincing the Malaysians that the road to heaven is by joining PAS or supporting it.

While all Malaysians who carry the interests of the country and harmony in their bosoms they will definitely would not want PAS gaining upper hand at the polls at the expense of their false pretences. Azmin Ali should consider the wider interests of Malaysia and its people, and if at best he should not try to straighten the camel’s back – which is, you cannot change or anticipate any change from PAS politicians.

S E C E S S I O N

Meaning:

The word secession is derived from the Latin word secessio. It denotes, inter-alia, an action of seceding or formally withdrawing from an alliance, a federation. It is different from partition, which means division of a country into separate autonomous nation. Classic example would be the Republic of Ireland which was carved out greater Ireland. The other example closer to our region is the partition of India and the new autonomous State of Pakistan. In 1972 the former East Pakistan seceded from the Pakistan and became Independent Bangladesh.

Our own experience is the expulsion of Singapore from Malaysia. It is hard to describe that as secession because Singapore did not want to secede. It wanted to remain as part of Malaysia; but, the Federal Government under the leadership of the then Prime Minister Tunku Abdul Rahman decided to expel Singapore because of alleged irreconcilable political differences. It was not a popular decision, because, even leaders in UMNO found it difficult to support Tunku in expelling Singapore. Thus, it cannot be said that Singapore seceded from Malaysia.

Secession is an overt act of person or persons or body of persons who want to withdraw from a federation. It is not partition, and it is not expulsion. Further, the secession of one territory (State) does not necessarily mean the break up of the Federation. If we are looking at an example the expulsion of Singapore did not affect the Federation of Malaysia. However, anything akin to secession could lead to the eventual breakup of the whole federation.

Reasons for secession.

It is difficult to state what may prompt a State to secede from the Federation. We can only look into other countries and see the reasons that had led to secession there. Each secessionist may have particular reason for withdrawing from the federation. Primarily it could be due to suppressive measures of the Federal Government against a weak State which prompts the affected State to demand secession. Unfair treatment - not being treated as equal partner, or the Federal Government favours one State than the others or there is lack of transparency, or lack of accountability, or corruption is rife, or there is inequitable distribution of wealth, or the Federal Government behaves as if it is a colonial master; or, there is complete breakdown in the Federal Government and the use of repressive measures would destroy the basis of the federation. We cannot safely say that these are the only grounds that could ignite the desire to secession.

However, there could arise incidents or frictions or disputes between a State and the Federation; and instead of resolving them the federation uses them for its own benefit thus creating a situation which becomes impossible for a State to remain in the federal unit.

Therefore, there can arise situations unique in their own way incompatible to the continued existence of the federation. Perhaps, the reasonable view that can be arrived at is that a federation could last forever provided the objectives and conditions under which they were created remain intact; but there could be adjustments in the relationship consistent with changes that take place in the neighbouring countries and in the world, and the changes in the mindset of the people but the unitive element never questioned or challenged.

The Malaysian Constitution and Secession:

The constitution of the Federation of Malaya, which came into effect on 31 August 1957 does not mention about secession. There is no reference to secession under the Constitution of Malaysia which was created by the successful merger of the States of Malaya, Singapore, and the Borneo Territories on 16 September 1963. However, since Singapore was expelled on 9 August 1965, the question of secession would have to be looked at from a different angle.

Expulsion and secession are two distinct concepts. Expulsion results in consequence of the majority’s decision to expel one State. Secession is an act by a State which finds it difficult to work with the federation, and the federal government in particular, and decides to leave the federation. Although Singapore’s expulsion cannot be a precedent to support a demand for secession, it does give credence to the fact that if a State can be expelled, it follows, a State can legitimately withdraw. Tunku Abdul Rahman, who engineered the expulsion of Singapore would not have foreseen that it could develop into a precedent for the future.

Although the Constitution is silent over the question of secession, but it is said that there is an agreement that the Borneo Territories would not secede. This could give the impression that the merging States could not opt out of Malaysia; but what about the States of Malaya? Or, what is the real position after Singapore was expelled?

The difficulty seems too obvious. If it is true that the merging States could not secede, it follows that none of them could be expelled. Thus, the expulsion of Singapore indicates that the condition not to secede is not absolute. If the Federal Government with the consensus of the States succeeded in expelling Singapore it is obvious that a merging State could secede. The Federal Government had indeed agreed to the course taken towards Singapore, and that has been approved by all the other States.

Perhaps, it could be argued that the Singapore question was different, and it does not apply to other States. We cannot forget the idiom what is good for the goose is also good for the gender.

Can secession be raised?

We have seen that secession in the form of expulsion had indeed taken place and it was initiated by the Federal Government which was not objected to by other States in the Federation.

We have also seen that the Federal Constitution is silent about secession. The State Constitutions too have no provision which could be effectively invoked to seek secession. This leaves us with the point whether secession is a topic that can be canvassed notwithstanding the fact that it is a question that raises more questions than providing answers.

Generally speaking, secession should not be an issue for discussion because it could destroy the very foundation of the Federation.

The political scenario in the late forties following the return of the British, the role played by the Malayan Communist Party are worth recalling. There had been calls for the abolition of the monarchy with the creation of a Republic of Malaya.

The swing towards this call could be traced to the political development in Indonesia coupled with the fact that the Communists had no inclination for monarchical institutions. With the declaration of Emergency and all-out war against the Communists, the British administration introduced the draconian Sedition Act in 1948. If we trace the background of the Sedition Act 1948 which was introduced in England, it could be gleaned that its main purpose was to protect the institution of monarchy. The Sedition Act 1948 was used to quell freedom of speech and it also effectively outlawed any talk of republicanism in Malaya, which continues even today. Monarchy is now a part of Malaysia and it is an institution which deserves respect and veneration. The Rulers also ought to carry in their bossom love, respect, and veneration cannot be one-sided and they have to be reciprocated with benign attitude, and rational approach in everything the Rulers do.

Apart from the Sedition Act, Penal Code in Section 121 provides that, waging or attempting to wage war or abetting the waging of the war against the Yang di-Pertuan Agong, a ruler or Yang di-Pertua Negeri as an offence. We cannot ignore a situation when the Attorney-General would construe that call for secession as an attempt to wage war against the Yang di-Pertuan Agong.

If could be seen that the combined effect of the Sedition Act, and the penal provisions in the Penal Code would indicate that secession could be construed as an act against the State, therefore, punishable. The general view would appear that it is indeed difficult to punish the call for secession. This is due to the unsatisfactory state of the law. But, from the practical side, we have seen that the Federal Government had in fact initiated expulsion, hence by order of things, if expulsion is legal then, call for secession cannot be legally wrong.

Who can ask for secession?

Whether a demand for secession or an act aimed at secession is an offence or not is a point that would require mature consideration. However, the question that looms at large is that who is entitled to make a call or demand for secession. The question of secession had arisen in consequence of a statement by the Johore Crown Prince to the effect that if the agreement made when Johore joined the Federation is breached Johore may withdraw.

This had indeed generated considerable but cautious reaction because the statement was made by the Crown Prince. Since the issue of secession was raised by the Crown Prince it must be assumed that nothing said, discussed would be construed as a breach of the provisions of the infamous Sedition Act 1948. Besides, the Sedition Act itself provides that it would not be seditious if the words spoken (or written) or discussed are in the best interest of the Ruler (Rulers).

It would therefore be necessary to look into the constitutional provisions delineating the powers of the State and of the Federal Government to pass laws.

The legislative powers have been distributed in such a way that under Article 73 of the Federal Constitution, (a) Parliament may make laws for the whole or any part of the Federation and laws having effect outside as well as within the Federation; and (b) the Legislature of a State may make laws for the whole or any part of that State. In the light of this particular provision it could be safely said that only the State legislature could demand secession.

Assuming a political party in a State decides to secede from Malaysia, legally speaking it should get sufficient numerical support in the State legislature to pass a law to break away from the Federation. There seems to be no impediment to this form of approach. In embarking upon a call for secession various factors need to be considered: would the Federal Government agree to such a course? If it does not agree what could be the repercussion? Could a State unilaterally declare Independence (UDI) just as Rhodesia (now Zimbabwe) did?

Or, would the Federal Government agree to hold a referendum in the State seeking secession to ascertain or verify the wishes of the people as to whether they want to secede or remain in the Federation. This could be cumbersome procedure and taking into consideration of the people’s attitude, their mindset, and their non-exposure to hard political realities coupled with the fact that racial and religious polarization had reached the peak, any campaign towards secession could pit one race against the other, one religion against another or others. We cannot deny that such a referendum and the campaign thereof could be an acid test.

Solution!  

It could be surmised that the framers of the Constitution had deliberately omitted the thorny issue of secession. This could be due to the confidence they had had in their mind that any dispute could be resolved through effective form of mediation or through judicial approach. It is this confidence that led to the incorporation of provisions in the Constitution to enable the judiciary to adjudicate any dispute that may arise between the State and the Federation or between States.

Should any State feel aggrieved by the conduct of the Federation it is always open for that State to seek redress in the Court; or, if a breach had occurred in the compliance of the Constitutional provisions applicable to a State, relief could be had from the Court. In this context Article 128 of the Federal Court could be invoked which provides that the Federal Court to the exclusion of any other court shall have jurisdiction to determine disputes on any question between the States or between the Federation and any State. Section 81 of the Courts of Judicature Act 1964 complements the aforesaid Constitutional provision. It could be safely said that secession is not a solution as the Constitution indeed provides a course to resolve disputes arising between States as well as between States and the Federation.

Constitutional Court:

At this juncture it would seem appropriate to consider creating a Constitutional Court which should have exclusive jurisdiction to hear cases involving the interpretation of the Constitutional provisions and the implementation thereof. In establishing the Constitutional Court it should be ensured that the judges are well-versed with the Malaysian Constitution and also Constitutions of the other countries with identical provisions. Most importantly these judges should respect the spirit of oath under the Constitution.

Date: 27 October 2015                                                                   K.Siladass