In the wake of the majority of the Court of Appeal in the case of Saravanan A/L Thangathony v. Subashini A/P Rajasingam [Rayuan Sivil No.W-02-955-2006] we, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, are greatly disappointed the once again, the non–converting non-Muslim wife of a convert to Islam has failed to get relief from our Civil Courts.
We would respectfully remind members of the Judiciary that the Federal Court, Court of Appeal and the High Courts in Malaysia and in Sabah and Sarawak are all civil courts and judges of those courts take an oath of office to uphold the Federal Constitution, which guarantees all persons, including non-Muslims, the fundamental liberty of professing and practising their faiths in peace and harmony.
It is very clear and specific in the State Legislative list in the 9th Schedule of the Federal Constitution that the “Syariah Courts…shall have jurisdiction only over persons professing the religion of Islam …”. The learned judges in the majority appear to note that requirement in their judgements, but with respect appear to contradict themselves by then requiring the non-Muslim wife to go to the Syariah courts.
We express our objection to any requirement for non-Muslims to have to go to the Syariah Court for relief as such courts apply Islamic theological law. Religious laws cannot be applied to people who do not profess that religion. The Court of Appeal in this case and civil courts are expanding Article 121(1A) of the Federal Constitution. We are also concerned that Syariah Courts are usurping functions which are not theirs. Consequently, non-Muslims are unable to obtain relief when the Syariah Court makes an order which interferes with their fundamental liberties guaranteed by the Federal Constitution.
The Federal Constitution is the supreme law of Malaysia. Our highest court had declared in the case of Che Omar bin Che Soh v.P.P.(1988) 2 MLJ 55 that Article 3 of the Constitution was never intended to extend the application of Syariah to the sphere of public law.
We object to any interpretation of our Constitution or our laws that deprive any person of his fundamental liberties, and deny access to a non-Muslim to the High Court applying the general civil law. We urgently call on the Government to immediately make the necessary legislative amendments to safeguard the rights of all Malaysians and to ensure non-Muslims have full and proper access to justice in the civil courts.
Dato’Chee Peck Kiat,
President
Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism
23.03.2007