Federal court dips its toe into the freezing pool of religious jurisdiction

In granting a fresh injunction to Subashini, the Federal Court coyly toys with the question of jurisdiction... ie. whether the Civil or Syariah courts have jurisdiction over cases where a Non-muslim is legally entangled with a Muslim.

Delivering the unanimous decision today, judge Datuk Abdul Hamid Mohamad, who chaired the three-member panel, said they have added one more question to the nine that will be deliberated by Subashini's lawyers during the appeal.

The question is, whether in an application for an interim injunction, the court can make a final determination on issues of law, particularly if it is a question of jurisdiction, as opposed to a consideration of only the existence of a serious issue of law to be determined.

My dear justices... it is beyond doubt that a serious issue of law exists. There is no need to deliberate whether it exists. It does and it's staring you and the country in the face. It is so 'in-your-face' that you can practically see the fillings in its teeth when it opens its mouth to spew religious encroachment.

If there was no issue of law, there would be no duality of jurisdiction. No struggle between the Muslim and non-Muslim couple as to which court should pass judgement on them. The fact that an application for an injunction to restrain another court (Syariah) is before you, makes this painfully obvious.

So do your damn job, and make a judgement. Come to a conclusion which court should have jurisdiction over cases involving a Muslim (convert) and a non-Muslim, especially when the contract or arrangement was entered into before the former converted.

Federal Court rules for Subashini's appeal

PUTRAJAYA (May 17, 2007): The Federal Court today granted secretary R. Subashini, 28, permission to appeal against the Court of Appeal decision which told her to seek remedy in a syariah court over her legal battle with her Muslim-convert husband T. Saravanan, 31.

The Court of Appeal had upheld a High Court's dismissal of an injunction she obtained to stop her husband, now known as Muhammad Shafi Saravanan Abdullah, from going to a syariah court to dissolve their marriage and get custody of their children.

The couple have two children aged three and one. Muhammad Shafi claimed the elder child converted to Islam with him last May.

Delivering the unanimous decision today, judge Datuk Abdul Hamid Mohamad, who chaired the three-member panel, said they have added one more question to the nine that will be deliberated by Subashini's lawyers during the appeal.

The question is, whether in an application for an interim injunction, the court can make a final determination on issues of law, particularly if it is a question of jurisdiction, as opposed to a consideration of only the existence of a serious issue of law to be determined.

Abdul Hamid said if the answer were to be affirmative, then the nine questions that Subashini sought to refer to would follow. However, if the court disagreed, Subashini's appeal would only focus on an injunction application.

No date was fixed for the appeal hearing.

Abdul Hamid also granted a fresh injunction, restraining Subashini's husband from dissolving their civil marriage and seeking custody of their elder child through a syariah court, pending the disposal of the appeal in the Federal Court.

Among the questions Subashini is asking the Federal Court to determine are:

* Does the syariah court have exclusive jurisdiction to grant divorce and deal with matrimonial assets and custody rights in a situation where one spouse in a civil marriage has converted to Islam?;
* Is the Administration of Islamic Law (Federal Territories) Act 1993 intended only to address marriages solemnised under Islamic legislation, and issues related to divorce, maintenance and custody rights?; and
* If the answer is yes for the second question, is it an abuse of process for the converted spouse to file custody proceedings in the syariah court, and an abuse of the Law Reform Marriage for a spouse to unilaterally convert the religion of a minor child without the consent of the other parent?

Updated: 08:27PM Thu, 17 May 2007