Temporary reprieve for Subashini

Subashini won an injunction, albeit a temporary one, against her estranged, sneakily converted husband Saravanan - to the effect that he cannot apply to the Syariah court to end their marriage and convert their child. Subashini's counsel argued that the injunction was critical and necessary, pending her appeal to the Federal Court.

And indeed it is. As her lawyer said:

...the injunction was important because even if the Federal Court were to decide in her favour later, the judgment would be rendered academic if the husband, T. Saravanan, was allowed to get a final order of divorce from the syariah court first.

“All I am asking for is the preservation of status quo."

As a non-Muslim layman, it has always appeared to me the Syariah Court seemed to be obsessed with a "first past the post" mentality. When it comes to conversions, as long as the convert is able to complete the necessary rites of passage and sign the papers, he/she (and whichever child is unfortunate enough to be party to it), will immediately be considered Muslims in the eyes of the Syariah Court.

Never mind that the convert still has messy ties & relationships with non-Muslims, or has unresolved non-Muslim obligations or that the conversions of children were done in deliberate secrecy and ill intent to deceive the other parent. The fact that the convert is legally unfit / incapacitated / restricted or morally undeserving appeared to hold no water with the Syariah Court. To a casual observer, it sometimes seemed that mere rituals, rites and paperwork was sufficient for the court, even when confronted with fact that the prior and subsequent conduct & lifestyle of the convert were "un-Islamic" in nature. This was shown in several cases, the most spectacular of them being the corpse-snatching Moorthy case

Consequently, non-Muslims can only draw a perception that the Syariah Court subscribes to the "nasi sudah menjadi bubur" (rice has become porridge) thinking. That the FORM (ritual) of the conversion is more important and binding, than the SUBSTANCE (faith and sincerity) of the convert. Perhaps it is this same preoccupation with 'form over function' that results in the religious authorities having task forces and armies of storm troopers to catch people holding hands in public places - but remain deafeningly silent and violently motionless on the real issues like corruption and racial discrimination, for instance.

Therefore, even though a Federal Court appeal is pending... if Saravanan was somehow able complete the rites and rituals to divorce his wife and convert the child - the Syariah Court will find itself helpless but to uphold the divorce and conversion... paving the way for yet another round of Civil vs Syariah court showdown.

Here's where I think Justice Suriyadi is being unreasonable:

Justice Suriyadi then asked: “Has there been any attempt to convert the second child since the day we gave judgment?”

Malik: “Not that we know of. Perhaps my learned friend for the respondent can shed more light on this.”

Justice Suriyadi: “This is your case. You show me. I am looking at things in a rather clinical manner. You want an injunction you must show to me why it should be granted. I do not want to be set by external factors. I asked, are there any changes, and you said 'No'. So, status quo is the same.”

My dear Mr Justice, perhaps you could enlighten us laymen as to what injunctions are for? I always thought they were to PREVENT the status quo from changing.

If you require that the status quo to HAVE CHANGED FIRST, before actually issuing the injunction - wouldn't that already be too late (nasi sudah menjadi bubur) and render the injunction useless and moot before it even sees the light of day?

I mean no disrespect, but perhaps you would allow me to sneak a peek at the law degree hanging on your office wall. I've got a funny feeling that the name of university on the parchment might have a spelling error... like 'UNIV3RSITI OF LUNDUN' or something.

Haniff Khatri Abdulla, who acted for Saravanan, said that the panel could not grant an injunction now since it had earlier affirmed the setting aside of an interim injunction granted to Subashini when it dismissed her appeal on March 13.

Haniff: “It amounts to the court reviewing its own decision.”

Justice Sri Ram: “Nonsense. This is a fresh application. We are not reviewing. We are asking you to prevent the husband from pursuing his case in the other court pending his wife’s appeal to the Federal Court.”

Heh heh... I'm beginning to like Justice Sri Ram more and more.

Nonsense indeed. In fact I think that aptly describes the judgement of this panel to send Subashini, a non-Muslim, to the Syariah Court.

Previous blogposts:

- Non-Muslim wife's appeal dismissed in favour of Muslim husband
- Islamic experts tell non-Muslims not to be prejudiced against syariah courts

Press articles on the injunction hearing below.

Stay against Syariah proceedings
By CHELSEA L.Y. NG
http://thestar.com.my/news/story.asp?file=/2007/3/31/courts/17314381&sec=courts

PUTRAJAYA: R. Subashini, who was told to go to the Syariah Court to fight for her matrimonial rights, obtained a temporary injunction from the Court of Appeal to preserve her civil rights pending her appeal to the Federal Court.

In a majority judgment, Justices Gopal Sri Ram, Suriyadi Halim Omar and Hassan Lah, who heard Subashini’s application yesterday, granted an injunction preventing her husband, who had converted to become a Muslim, from initiating or continuing with any proceedings in the syariah courts or converting their younger son. Justice Suriyadi dissented.

Subashini’s lead counsel Malik Imtiaz Sarwar had argued that the injunction was important because even if the Federal Court were to decide in her favour later, the judgment would be rendered academic if the husband, T. Saravanan, was allowed to get a final order of divorce from the syariah court first.

“All I am asking for is the preservation of status quo. The Syariah Court orders, if not stopped, will cause my client severe prejudice,” said Malik.

Justice Suriyadi then asked: “Has there been any attempt to convert the second child since the day we gave judgment?”

Malik: “Not that we know of. Perhaps my learned friend for the respondent can shed more light on this.”

Justice Suriyadi: “This is your case. You show me. I am looking at things in a rather clinical manner. You want an injunction you must show to me why it should be granted. I do not want to be set by external factors. I asked, are there any changes, and you said 'No'. So, status quo is the same.”

Justice Sri Ram then asked Malik whether there was any custody issue involved, to which the counsel said that his client was a mother who would be deprived of her right to custody of her children if her husband succeeded.

Haniff Khatri Abdulla, who acted for Saravanan, then said the injunction bid was “another attempt to restrain the husband from reaping the fruits of a judgment in his favour”.

Haniff then said that the panel could not grant an injunction now since it had earlier affirmed the setting aside of an interim injunction granted to Subashini when it dismissed her appeal on March 13.

Haniff: “It amounts to the court reviewing its own decision.”

Justice Sri Ram: “Nonsense. This is a fresh application. We are not reviewing. We are asking you to prevent the husband from pursuing his case in the other court pending his wife’s appeal to the Federal Court.”

On March 13, the same panel had in a majority judgment ordered Subashini to battle out her divorce and custody claims at the Syariah Court.

Earlier on Sept 25 last year, Judicial Commissioner Aziah Ali set aside the injunction granted to 28-year-old Subashini a month earlier, which had enabled her to temporarily restrain Saravanan, 31, from commencing with the proceedings in the Syariah Court.

The couple, who has yet to finalise their divorce, has two children, Dharvin Joshua, three, and one-year-old Sharvin.

Saravanan, whose Muslim name is Muhammad Shafi Abdullah, claims that the elder child had converted to Islam with him in May.

Later yesterday, Subashini’s solicitor K. Shanmugam filed her application for leave to appeal to the Federal Court.

Subashini granted temporary injunction to stop husband from syariah court action
R. Surenthira Kumar
http://www.sun2surf.com/article.cfm?id=17465

PUTRAJAYA (March 30, 2007): R. Subashini's Muslim convert husband has been temporarily prevented from using the syariah court to dissolve their civil marriage, seek custody of their children, and unilaterally convert one child.

In a majority decision today, the Court of Appeal granted Subashini an interim injunction to restrain T. Saravanan, now known by his Muslim name of Muhamad Shafi Saravanan Abdullah, from proceeding with his case at the syariah courts pending the disposal of her application to the Federal Court to hear her appeal of the appeal court's earlier decision.

On March 13, the same Court of Appeal bench, in a majority decision with Justice Gopal Sri Ram dissenting, had dismissed Subashini's appeal to stop Saravanan from dissolving their marriage, seeking custody of their children and unilaterally converting their children to Islam, saying she could seek recourse through the Syariah Appeal Court.

The three-person bench was chaired by Sri Ram, and also comprised Justices Datuk Hasan Lah and Datuk Suriyadi Halim Omar.

Today's injunction order prevents Saravanan from converting his second child, one-year-old Sharvind, to Islam.

The formerly Hindu businessman converted the first child, Dharvin Joshua, to Islam without Subashini's knowledge.

Sri Ram and Hasan allowed the injunction, while Suriyadi dissented but no reason was given for his decision.

Lawyer Malik Imtiaz Sarwar, representing Subashini told the court their application for leave to appeal against the March 13 Court of Appeal decision would become pointless if Saravanan proceeded and succeeded with his actions in the syariah court.

"This would render the application for leave and the subsequent appeal nugatory, and deprive Subashini of the fruits of her litigation," said Malik Imtiaz.

He said the effect of the Court of Appeal's majority decision on March 13 was so momentous, in that for the first time the civil courts have told a non-Muslim that she must submit to the syariah courts to be adjudicated according to Islamic law.

The Federal Court, Malik Imtiaz said, ought to be given an opportunity to properly consider the application to appeal.

"It would, therefore, also be in the public interest for the status quo to be preserved," he added.

Suriyadi asked Malik Imtiaz if there had been any attempts by Saravanan to convert the second child.

Malik Imtiaz said, as far as they knew, there was none.

Suriyadi then said, since there was no change to the status quo on the matter, Malik Imtiaz had to provide concrete reasons for his argument.

"You want an injunction, you establish to me the reasons for it. Likewise, I want to approach the case in a clinical manner and not be influenced by external factors," said Suriyadi.

Sri Ram asked if there was still a tussle between Saravanan and Subashini over custody of their children, to which Malik Imtiaz said it has yet to be decided on.

Suriyadi pointed out that an ex-parte interim order had been issued by the Syariah High Court giving custody of the elder son to Saravanan on May 23, 2006.

Lawyer representing Saravanan, Mohamed Haniff Khatri Abdulla, said Subashini's application was an attempt to restrain her husband from proceeding to seek recourse through the syariah courts following the March 13 Court of Appeal decision.

Mohamed Khatri Haniff also argued that it should be the Federal Court that heard today's application, but his argument was shot down by Sri Ram who said the Court of Appeal had the authority to do so.

The lawyer also said the move was akin to the court attempting to review its previous decision.

Sri Ram said there was no such attempt.

"This is a very serious encroachment of her rights. Injunctions are normally granted by the courts on the basis of preventing injustice," said Sri Ram.

He also noted that there were no circumstances to show that Saravanan planned to convert Sharvind.

But Malik Imtiaz said there was no guarantee that would not happen, hence the threat still existed.

Following today's interim injunction, Subashini later filed the leave application to the Federal Court.

Haris Mohd Ibrahim, K. Shanmuga and Richard Wee Thiam Seng appeared together with Malik Imtiaz while Zainul Rijal Abu Bakar appeared with Mohamed Haniff Khatri.

Meera Samanther held a watching brief for the Women's Aid Organisation, Women's Centre For Change, Women's Development Collective, Sisters In Islam, All Women's Action Society and the Bar Council, and Ng Chek for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism.