Let common sense prevail

On The Beat
By WONG CHUN WAI

Any divorce is a messy affair. But when one spouse is a Muslim and custody of the children is involved, it gets even more complicated. 

FORGET about the complexities of the law and even the politics of race and religion. The story of R. Subashini is a simple heart-wrenching tale of a woman who is fighting for the custody of her two young children – a tussle resulting from her husbandÂ’s desire to end their marriage. 

While divorces are common, hers is complicated. Her husband of five years became a Muslim convert without her knowledge and he has also converted their three-year-old son. They have another two-year-old child. 

All Subashini, 28, wants is to keep her two children and end their marriage in a civil court. Her husband, businessman Muhammad Shafi Abdullah, formerly T. Saravanan, 31, has instead applied to the Syariah court to end their civil marriage.  

There are dire consequences. First, she is worried that as a non-Muslim mother fighting to keep her children, the odds could be against her in a Syariah Court. Her son has become a Muslim, she claims, without her knowledge. The boy converted to Islam with Saravanan last May. 

Second, as a non-Muslim, she should not be seeking redress in a Syariah Court because the Federal Constitution clearly states so. Should we no longer take this legal document seriously? 

But more worrying for non-Muslims is that this unprecedented move could be the basis for future cases involving non-Muslim and Muslim parties. Even Muslim lawyers and experts have expressed their worries. 

As lawyer Datuk Zaid Ibrahim wrote in a newspaper article on the case: “Even if Subashini wants to submit to the Syariah Court, she canÂ’t. Jurisdiction is not a question of choice or submission; it is a question of law.”  

A seemingly straightforward court case has grown increasingly difficult, with self-proclaimed defenders of faiths getting into the picture, because the Court of Appeal has given the impression that it wants to wash its hands off the case. 

On March 13, the Court of Appeal decided that Subashini had to seek redress at the Syariah Court for the break-up of her family and the custody of her children, one of whom has become a Muslim. 

It would have been much easier had Saravanan first divorced Subashini, settle child custody and property matters under civil law before he converted to Islam. But that was not the case. 

Instead, he has taken a different route, best known to himself, and put the whole family into a tight spot. At the same time, the legal implications of his case have put the rest of the nation in a tight spot. 

Last week, Subashini won a minor victory – she obtained the green light from the Court of Appeal to preserve her civil rights, pending her appeal to the Federal Court 

Given the sensitivity of religious matters, the case is now in the spotlight as the nation watches how the Bench intends to resolve this legal wrangle to the satisfaction of everyone. 

We donÂ’t need to be lawyers and law professors to know that the Federal Constitution clearly stipulates that the Syariah Court has no jurisdiction over non-Muslims. ItÂ’s that simple.  

Even if Subashini agrees to take her case to the Syariah Court, she cannot do so. It does not matter whether she would get a fair or biased hearing at the Syariah Court. That is beside the point and should not even be a matter for debate. 

To suggest that non-Muslims should not fear the Syariah Court and that they must accept the purported political-religious reality, as some quarters have implied, is grossly unfair and totally unrelated to the core of the issue.  

No one would argue over the ability of the Syariah Court to dispense justice but the position of civil laws and the Federal Constitution is clear. That is why it is sometimes referred to as the common law, which means laws applicable to Muslims and non-Muslims. 

But more importantly, as the nation awaits to celebrate the countryÂ’s 50th anniversary, we have a right to ask ourselves what our founding fathers, who had spent endless hours writing the Federal Constitution, would have thought of this case. 

The Federal Constitution, we are aware, was part of the social contract agreed on by the founding fathers, and certainly any move that violates or even dilutes the status of the Federal Constitution is of serious concern. 

But more importantly, surely the civil courts are in a position to provide the solution to SubashiniÂ’s problem. As Zaid correctly pointed out: “Surely the son is as much hers as it is his and shouldnÂ’t the motherÂ’s wishes be taken into account in an important matter such as the faith of her child, especially when he is so young? 

“We have had many arguments put forward by those who are experts in the law but these people do not have to endure the pain and suffering undergone by Subashini.” 

Let common sense prevail. We are sure Malaysians are able to handle SubashiniÂ’s case with justice and compassion. After all, that is what the law is all about for those who seek legal redress.