Thursday, September 20, 2007

Do conversions automatically end civil law marriages? Hell NO.

The legal counsel for T.Saravanan, Subashini's estranged dubiously converted husband - submitted his argument yesterday. You can find it on Sun2Surf and Malaysiakini. Their headlines are ominous... Civil courts have no jurisdiction: Counsel and Subashini can "submit" to Syariah Court, respectively.

Apart from citing the arguments of Article 3(1) that Islam is the religion of the Federation and Article 121(A) regarding the jurisdiction of the syariah court over matters of Islamic law, he said:

...Saravanan could not subject himself to the civil courts because he had converted to Islam. However, Subashini could go to the civil court or choose to go to the syariah court.

Hence, he argued, the non-Muslim – in this case, Subashini -- should go to the syariah court instead of preventing the Muslim party from seeking justice.

Similar or better remedies were available to the non-Muslim spouse under syariah jurisprudence.
Just because the syariah court deems itself fit to make judgements over non-Muslims DOES NOT mean that non-Muslims need to submit themselves to the judgements of the syariah court. As far as the Federal Constitution and non-Muslims are concerned, the judgements of the syariah court are as binding on non-Muslims as the raspy shouts of the my angry old neighbour are over where my dog takes a dump in my garden.

But here is the greatest FLAW in Saravanan's argument, which ironically is also its main thrust.
Haniff said the civil marriage between Subashini and Saravanan ended under Islamic law upon the husband’s conversion.
Uhhh... I'm sorry, I'm just as unversed in Conman Law as I am in Ekornomics.

Isn't a marriage a contract, an arrangement, an agreement between 2 parties? And being such, can one party take unilateral actions to change the terms of the agreement? Doesn't both parties have to mutually agree on any changes to the contracted terms?

Can someone like Saravanan come to my coffeeshop one evening and consume RM1,000 of Guinness Stout on his tab, then he converts to Islam the next day and reneges on his contractual obligation to pay his RM1,000 tab on the argument that Muslims are not allowed to be party to a contract that involves things that are haram? Notwithstanding the fact that he had already gotten nicely pissed drunk on my booze which he hasn't paid for yet? Is that fair?

So, we cannot, as decent, right-minded people accept such blatantly mischievous attempts by irresponsible persons to renege on their legal obligations by backdoor means, such as conversions. In addition, I am surprised no end, as to why the syariah court allows itself to be manipulated like a puppet on a string by insincere converts, time and time again.

May I submit that Saravanan's conversion does not end a civil marriage, but merely provides grounds for it to end within the confines and continued jurisdiction of civil law?

And if we take the indisputable logic of timeline further, isn't it reasonable to conclude that Saravanan's conversion is illegal in the first place, as he was still encumbered by his civil law marriage, before and at the time of conversion?

If his civil marriage was not important or 'haram' enough to void his conversion from the start, how can it now, suddenly be so important as to be automatically void due to the conversion?

For my view on how conversions needs to be in a civilised Malaysia, read A Solution to the Article 11 Impasse.

To read Subashini's argument, see 'Subashini matters'.

Here's other background reading on how all this impacts the lives and loves of non-Muslims in Malaysia: - http://sean-the-man.blogspot.com/search?q=subashini

1 comment:

seantang said...

Here's Malik Imtiaz's (Subashini's counsel) rebuttal of Saravanan's argument. Sounds similar to the above, no?

'Hubby cannot claim he no longer comes under purview of civil laws after conversion to Islam'
R. Surenthira Kumar
http://www.sun2surf.com/article.cfm?id=19448

PUTRAJAYA (Sept 24, 2007): A husband cannot claim he no longer comes under the purview of civil laws after his conversion to Islam, argued the lawyer representing R. Subashini in the Federal Court today.

Malik Imtiaz Sarwar told the panel of three judges that by making such a claim, a convert could leave the other party in a civil marriage in the doldrums by seeking recourse in another court to resolve the dispute between them.

He added that the argument that the syariah court had the power to legislate to dissolve marriages under the Law Reform (Marriage and Divorce) Act 1976 (LRA) was unreasonable because it extended the syariah court’s jurisdiction.

Malik Imtiaz said the implications from such an argument were unreasonable because it would:

- appear that the syariah court could embrace non-Muslims,
- allow for the converting spouse to ignore his or her obligations under the LRA at a time when the party concerned was a non-Muslim,
- leave the non-Muslim spouse with no meaningful and just recourse, and further run counter to the guarantee of equal protection under Article 8 of the Federal Constitution.

Malik Imtiaz said this Article guaranteed the wife, in this case, the right to procedural and substantive fairness.

He added that the power to legislate must be harmonised with this fundamental liberty, if not, the liberty would be rendered illusory.

Malik Imtiaz was submitting his reply in the legal tussle between Subashini, 29, a Hindu, and her Muslim convert husband, T. Saravanan, 31, over the dissolution of their civil marriage, conversion of their second child, and custody over their two sons.

Saravanan, now known as Muhamad Shafi Saravanan Abdullah, had earlier converted the couple’s eldest child without his wife’s consent.

On March 13, Subashini was told by the Court of Appeal in a majority decision with Justice Gopal Sri Ram dissenting, that she could not stop Saravanan from dissolving their marriage, seeking custody of their children and unilaterally converting their children to Islam.

She was also told that she could instead seek recourse through the Syariah Appeal Court.

In appealing the Court of Appeal’s decision yesterday, Malik Imtiaz said the syariah court’s jurisdiction was circumscribed by the requirement that it be over persons professing Islam, and hence the syariah court can only enforce laws when all parties before it profess the religion.

Malik Imitiaz also rebutted Saravanan’s argument that his wife’s divorce petition was premature as she had ignored the Islamic imposition of waiting for three menstrual cycles to lapse first.

Malik Imtiaz said Saravanan himself had filed for divorce in the syariah court a day after his official conversion, and before the three month cycle had lapsed.

He also said the statement that Islam was the "religion of the Federation" as stipulated in Article 3(1) of the Federal Constitution was only meant for rituals and ceremonies, and was never intended for Islamic law to operate beyond the expressed confines of the constitution, in particular against persons who do not profess Islam.

Malik Imtiaz said if the arguments of Saravanan’s lawyer were accepted, this would mean that the state was allowed to legislate Islamic law to be applied on non-Muslims.

This, he added, was totally contrary to the Federal Constitution’s careful scheme to protect the religious rights of all Malaysians, in particular non-Muslims.

Malik Imtiaz said Saravanan’s religious freedom was not being violated because the key consideration in the case were the antecedent rights that were contracted under the LRA when both husband and wife were non-Muslims.

Judges Datuk Nik Hashim Nik Abd Rahman, Datuk Abdul Aziz Mohamad and Datuk Azmel Maamor said they needed time to consider the submissions from both parties. A decision would be delivered on a date to be fixed later.