Shamala and the skirt of technicalities
Art Harun
Are you surprised? Well, I am not. The Federal Court rarely surprises me nowadays.
Take the decision of the Federal Court in Diana Nelson Tanoja v PP [2010] 3 CLJ 1, for example. In this case, the Federal Court – the highest Court in the whole land – in all its wisdom, held that in Malaysia, under our law, the Court can decide a criminal case on its own without hearing legal arguments at the close of the defence case. And this was a case which attracted the death sentence, no less. (A well written criticism of this case can be read at LoyarBurok).
Malaysia must then be the only country in the Commonwealth where the Court is not obliged to hear legal arguments (or, in legal jargon, submissions) before deciding to convict or acquit an accused person!
Meanwhile, the recent Federal Court decision in the Shamala case is not the first time the Federal Court had chosen not to rule on an issue which is important to the nation, such issue having far reaching consequences to the society at large.
I have lost count of the number of cases which involve inter-faith conflicts arising from conversion and re-conversion of a person from one faith to another – often from one faith to Islam and back to the original faith -where the Federal Court had chosen not to make a ruling, preferring to dismiss the case on technicalities instead.
These inter-faith conflicts often take place in marital or inheritance disputes although disputes involving burial rites are also proving to be on the rise lately. Although these disputes may sound personal in nature, the repercussions and ramifications from such disputes, and the way they are resolved, bring with them wider and deeper societal impact. At the rate we are going and looking at the way we are handling these issues, it is clear that a time bomb is waiting to explode on this front.
Malaysia is a country where even the Constitution itself defines ethnicity. And as if to muddle it further, even the concept of Malay-ness in the Constitution is tied up to a particular faith, namely, Islam. To further spice things up, there are claims from our leaders and layman alike that citizen of certain ethnicity possess and enjoy “special rights.”
Such is the situation here. It does not take a legal expert to note that different faith and ethnicity in Malaysia bring with it different legal dynamic, in terms of personal laws, particularly concerning inheritance, matrimonial disputes and child custody.
What is worrying to me is not the fact that such disputes are taking place. In a multi-ethnic-faith-culture country such as ours, the existence of such disputes is only to be expected. The disconcerting fact is that we seem to be unable, unwilling and unprepared to properly deal with such disputes in a just and fair manner, in accordance with the laws of this country.
What is even more worrying is the political nuances which such disputes bring and the fact that such disputes are being handled as political hot-potatoes rather than what they are and should be, namely, personal and legal disputes.
During the hearing of the Shamala case in the Federal Court, I am made to understand that one of the learned Judge asked the Counsel whether this issue is of a social or political nature. With respect, why would the Court want to know from the Counsel whether the case is of political nature or otherwise?
The Shamala case involves a referral to the Federal Court by the Court of Appeal. The referral was made by the Court of Appeal BY CONSENT of all the parties involved. When the Court of Appeal was considering to make the referral, all parties CONSENTED to the referral being made. Purging of Shamala’s alleged contempt was not raised at all at that time.
The referral involves the following questions, which were to be answered by the Federal Court, namely:-
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1. Whether Section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires (beyond the powers) of Article 12 (4) of the federal constitution (specifically concerning the right to determine the religion of the children under the age of 18 shall be determined by the parent or guardian) and Article 8 regarding equality rights;
2. Whether the same section in state law is inconsistent with federal law namely Section 5(1) of the Guardianship of Infants Act 1961, and is therefore invalid;
3. Regarding Article 121 (1A) of the federal constitution, where a custody order for children is made, which court, between the Syariah Court or the High Court, is the higher authority?
4. When there is conversion of children of a civil marriage to Islam by one parent without the consent of the other, are the rights of remedies for the non-Muslim parent vested in the High Court?
5. Does the Syariah Court have jurisdiction to determine the validity of conversion of a minor into Islam, once it had been registered by the Registrar of Muallafs (Registrar for newly-converted Muslims)?
The questions, as framed, consist of important Constitutional issues. The ruling by the Federal Court on such questions carry far reaching consequences on Malaysia as a whole, as opposed to only Shamala, her kids and her husband.
Is it not obvious from the questions as framed that the referral was not about the personal life of Shamala, her kids and her husband alone? Is everybody within the corridors of the law well appraised of the differences between an order in personam and an order in rem, what they mean and the effect of the two? Or do I need to spell that out?
Well, just in case. An order in personam just binds the party to a case. In contrast, an order in rem binds the whole world. Any ruling by the Federal Court in the Shamala case would bind the whole world as the ruling would affect Shamala’s marriage, the status of the children’s faith, the husband’s right his children’s choice of faith and many more matters.
It is, in my view, from this perspective that the Shamala case ought, with respect, to have been approached as opposed to the narrow approach taken by the Federal Court in its decision.
The Federal Court refused to entertain the referral apparently because Shamala was in contempt for breaching a High Court order which required her to bring her children to Malaysia. Essentially, the Federal Court was of the opinion that Shamala was not entitled to pursue her Constitutional referral to the Federal Court because she was in contempt. (The full speech of the Federal Court can be obtained from here.)
With respect I take issue with some aspects of the decision.
