I agree with what Jamesy said about the majority’s decision of Subashini’s case being in defiance of logic.

Indeed for such an important decision having vast societal implications, the fact that the chief of judiciary – Chief Justice Abdul Hamid – was a dissenter from the majority’s view, is, a matter disconcertingly quite out of the ordinary, raising concerns, as what YB Kit said, whether “one man however well-meaning beat a system which is rotten”.

Just when we thought that the issue of “independence” of judges has been highlighted by Lingam Video Clip scandal, our attention is now drawn to an additional dimension of the problem relating to quality as well, which explains Kit’s statement, “even without even going into the Lingam Tape scandal, the state of the judiciary is a parlous one”…

Of all the reneging of pledges, the one of greatest concern to me is the one in respect to the state of our judiciary.

This is most important because the courts, especially the apex courts, are the ultimate arbiters of all our rights and obligations in contention in a civilized society.

More than ever, a well qualified and ethnically and gender-diverse bench has assumed the greatest importance today. I believe that such a diverse composition will, as a first step, mitigate some of the problems, which our institution of Judiciary faces today.

Every now and then we hear our ruling politicians extolling the virtues of unity in diversity. It is supposed to be the unique asset and strength of Malaysia : but where is this ethos of diversity in places of power – whether Judiciary or Civil Service – where it counts?

The political leadership must take the rudder, plan, chart and navigate the course of the ship of state towards safe harbour rather than leave it, laissez-faire, tossed on the waves of chance.

The greatest irony, so far, is that where matters are/were actually planned – they are/were planned or perceived to be planned not for the good of all or necessarily the nation’s interest but that of sectional and parochial, if not, vested interests.

And better results have turned out due to chance and accident – like the case of Datuk Abdul Hamid Mohamad’s assuming quite unexpectedly, and by default, the top slot left by Tun Ahmad Fairuz Sheikh Abdul Halim in the wake of the Lingam Video Clip scandal.

Abdul Hamid Mohamad has pleasantly surprised me with the quality and common sense of his minority dissenting judgment in Subashini.

He has made courageous pledge of “house-cleaning” of the judiciary and if his judgment in Subashini’s case is anything to go by, he evinces the promise and hope of getting it done.

It is therefore unfortunate that his tenure is only “acting”, bridging the time before new Court of Appeal President, Tan Sri Zaki Tun Azmi most likely take over.

I say the leadership should give Abdul Hamid Mohamad a chance – and a longer tenure – to restore our Judiciary to the former position of enjoying public confidence.

If, necessary, amend the Constitution to pave the way for his tenure to be extended. It will be an act that the public will not object if convinced of his sincerity – rather than amending the constitution to extend the tenure of the Election Commission’s head by 1 year that the Civil Society and Bersih protest against.

It is a sad reflection of the state of affairs, as I said, that more favourable results ensue from accidental causes than the planned ones!

Otherwise than extending tenure, at least give Abdul Hamid Mohamad the mandate and free hand to immediately advise the government on the recruitment and promotion of judges based on the criteria of quality, impartiality, independence and gender blind diversity.

Undergrad2,

Further to what you raised, the Court was right in first part of the decision – that the civil court continues to have jurisdiction over him (the husband) since the civil marriage was solemnised by civil law, the Law Reform (Marriage and Divorce) Act 1976.

Where there was no unanimity was the majority’s decision that the husband had a unilateral right as Muslim convert to also convert the child of the marriage to Islam without the consent of the wife.

This is an important issue. The whole battle in court was to fight over this issue of whether the husband could as a convert to assert Muslim personal and religious laws and seek remedies in the Syariah to convert and have custody over the children.

The Majority gave him that right.

The Majority based their decision on the word ‘parent’ in Article 12(4) of the Federal Constitution, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, that means a single parent.

This cannot, with respect, be right.

Where a child has two parents, the single one can decide only if the other does not object. Because the objector is also a parent. To disregard her objection is equally tantamount to vitiating the right of decision of a parent under Article 12(4) in respect of the religion of her children under the age of 18 years! Secondly, unless contrary intention is clear in Article 12(4) – whichj I don’t think it is – in the interpretation of a legal word like “parent”, the singular would encompass the plural, and vice versa as per our Interpretation Act 1967.

On issue of custody, it is illogical to, on one hand, decide that civil law applies to the Saravanan/Subashini’s marriage by virtue of it being solemnized under the Law Reform (Marriage and Divorce) Act 1976 and yet decide, by reason only that one of the spouses having subsequently converted to Islam, Sharia would apply to custody issues in superiority over these same issues already governed under civil law [Law Reform (Marriage and Divorce) Act 1976] as ancillary reliefs.

Custody is an ancillary issue relating to marriage and its breakup. If one says marriage and its breakup is governed under the regime of civil law then all ancillary issues, including custody, ought likewise to be so governed.

One cannot have an open ended “neither here nor there” situation by saying that just because one spouse subsequently converted, then Shariah could also intrude and intervene on custody issue when it is already governed under Civil Law.

Where does article 12(1)(A) of Constitution say Syariah could subsequently intervene as superior law over civil, to take away something like custody which is already under civil law jurisdiction?

As Jamesy pointed out, one cannot have a situation where the wife Subashini is still entitled to seek redress under Section 51(1) of the 1976 Act (Law Reform (Marriage and Divorce) Act) to seek custody of her 2 children whilst Saravanan retains his right as Muslim convert to apply to Shariah courts to get custody.

To allow such a situation to happen leads to absurd consequences as when hypothetically a civil court decides the wife shall have custody and Syariah court decides the muslim husband has the custody – now which court or whose decision is to prevail? Especially when, as I earlier said, article 121(1)A of the Constitution creating this bifurcation of 2 separate mutually exclusive streams of legal jurisdictions – civil and sharia – is silent as to which prevails in an event of conflict!

One should not appoint one person captain for a ship before it embarks on its journey with a proviso that a second person may also be empowered to give different directions as if he were appointed co-captain if he has converted in the course of the journey, without heed that the two captains may decide on diametrically opposite course without rules as to whose decision will prevail in a conflict.

Any judicial decision that may lead to such a problem of dilemma cannot be defended as being a god one – with all due respect. The logic is to apply civil law throughout once it is predetermined and conceded that civil law aplied to a civil marriage. There is order and certainty in the way people can structure theirs including matrimonial affairs. The moment sharia could also apply when one party subsequenly converts – and by so doing he could renege his obligations asumed earlier under civil law – disrupt this order and the very certainty that it is the object of law to provide. It will provide an avenue for people to just renege comitments by simple expedience of conversion. This should not be allowed; no law should be interpreted to allow the breaking of comitments like this to throw certainty and order out of the window. To allow so is, with all respect, a triumph of emotions over logic!