A very vigorous discussion about the Subashini case broke out at aisehman.org. I must say the quality of comments made by the readers was quite good. Better though was the courtesy, civility and just downright good manners displayed by all who commented (you'll understand what I mean if you ever come across the 'swearing-infested', ultra-bigoted, free-for-all situations so common in Malaysia-Today).
Anyway, the blogpost prompted a personal response from Malik Imtiaz, the Lead Counsel for Subashini. Here's the comment he added explaining the basis of Subashini's argument
Thanks for the posting and to the rest, thanks for having considered the issue important enough to express a point of view, whatever the point of view is.
I think it is important that we keep in mind the difference between the law as it is written and the law as some of us would aspire it to be.
Islamic law is applicable only on three conditions:
(1) there must be enacted law i.e. law having been made by parliament or the state legislature; and
(2) where all parties to the dispute are Muslims and
(3) where the issues involved are matters which, by law, are within the jurisdiction of the syariah courts.
Subashini’s team took the position that:
(1) the applicable legal provision is Section 51 of the Law Reform (Marriages & Divorce) Act which specifically provides for a situation where a party to a civil marriage converts to Islam. The provision provides that the divorce proceeding and ancillary relief is to be sought in the High Court. This makes sense as the marriage was solemnised under this law in the first place;
2) legal provisions giving jurisdiction to the syariah courts on matters of divorce and custody relate to marriages solemnised under Islamic law. This makes sense as all parties to such marriages are muslims and they had married under and in accordance with the principles of Islamic law (as enacted by the state legislature);
3) to expand “divorce” and “custody” in the syariah court to include disputes arising from marriages solemnised under civil law would be to expand the jurisdiction of the syariah courts in a way not permitted under the constitution. This is because
(a) the syariah court only has jurisdiction over matters of Islamic law and the marriage having been solemnised under civil law, the syariah court has no power to dissolve it
(b) the syariah court only has jurisdiction over persons professing Islam. It follows that one of the parties to the marriage would not be a muslim and there is no certainty that the children would also be muslims.
4) The scenario has been dealt with by the Supreme Court in 1995 which ruled that the civil court has jurisdiction in matters of this nature on the strength of S51. There is really, in that sense, nothing new here.
That is the law as it is written and declared. This is perfectly consistent with the constitution.
I started off by referring to aspirations because the confusion is caused, I think, by the aspirations of some for a wider Islamic system. This they suggest is required of them as Muslims.
Leaving aside the merits of the aspiration (I will write a post on my blog), the crucial thing to recognise is that that aspiration should only be made a reality through the proper routes i.e. constitutional amendment. Until that is done, Muslims should not be interpreting the law to suit their own personal beliefs and at their convenience.
A121(1A) does not prevent the High Court from ruling in the situation above. Section 51 makes it clear that this a matter within the jurisdiction of the High Court. The syariah court has no jurisdiction over civil marriages. This has been explained above (of course, the lawyers for the husband have a different view).
In any event, I cannot see anything un-Islamic about the High Court deciding the case under Section 51. It is not a mandatory precept of the religion to have dispute resolved by a syariah court. The Quran does not make a distinction between syariah courts and civil courts. The Quran does prescribe justice and non-discrimination. It also prescribes non-compulsion. The Husband may have chosen to become a Muslim but he has to respect his wife’s rights and the fact that she does have a say over the upbringing of their children.
The constitution uses the word ‘parent’ in Article 12 but Article 8 provides that there can be no discrimination grounds of gender. Both parents have an equal say in questions of guardianship. This is provided for under the Guardianship of Infants Act. Therefore it is not correct to say that as the word ‘parent’ is used as opposed to ‘parents’, the Husband in this case has the final say.