Friday, August 8, 2008

skirting the issue - the latest court of appeal decision

Malaysian Insider reported yesterday about the Court of Appeal's (the CoA) majority decision to dismiss a woman's appeal against the High Court's decision refusing to grant her application for a declaration that she has a right to renounce Islam. The CoA apparently, in a 2-1 decision, decided to dismiss her appeal because the name appearing in her originating summons "no longer existed".

This is yet another shallow minded, convenient and fearful approach taken by the second highest court of the land when being confronted by matters involving conversion from Islam by anybody who had earlier professed to be a Muslim. Rather than seizing the opportunity to make a fully reasoned decision by confronting the issue at hand heads on, the CoA would rather hide behind trivial technicalities as if procedures are made to hamper, rather than aid, litigants.

I have lost count on how many such cases have come up for appeals in the CoA or even in the highest Courts of the land, the Federal Courts. Not a single one has been decided on its merit. The most that has been said in these cases is that the matter is within the purview of the Syariah Court and thus the civil courts do not have jurisdiction to entertain the cases. Since when the Syariah Courts have jurisdiction to decide on a Constitutional issue is quite beyond my remembrance.

In this latest episode, the woman had used both her Muslim and her Chinese names in her summons. The purpose of stating one's name on a summons or in any legal documentation is to identify oneself. In the olden days in England, one did not only have to state one's name but also was required to state one's address and/or profession. That is solely for the purpose of identification so that a Robin Hood of Nottingham Forrest would not be mistaken for a Robin Hood of Newcastle-upon-Tyne. The practice of stating one's name and address continues to this very day because as we all know, there is no such thing as an identity card over there.

That practice was adopted here. Thus, one has to state one's name and address in any summons and also affidavit. However, our Courts take the matter so seriously so much so that there are Judges who dismiss cases or reject affidavits just because the address is not stated or the name is not spelt correctly. In doing that, the Judges have failed to appreciate the rationale for such procedural rule (I would even say they don't actually know the rationale). They also forget that in Malaysia, an identification could be specifically done just by stating the Identity Card number! Thus, the rule requiring that one's name and address or even profession be stated must be taken in that perspective.

One of the CoA Judges was in the case yesterday was reported as saying "the question before us is who is appearing in the appeal? Is it the Chinese name or the Muslim name?". First of all, the one appearing before the CoA was not the "name" but the PERSON being represented by her Counsel. Second of all, her Counsel had already clarified that the name appearing on the Court papers was the name of the PERSON appealing. So, what was the issue? Where was the confusion? It also speaks volume of the quality of the AG Chambers' advocacy skills when all they could muster in such an important case was an objection of this nature.

The truth is that the real issue at hand is the proverbial hot potato which no one would like to handle. The name or names was just a convenient excuse to pass the buck. One wonders why the CoA did not seize the opportunity to decide on a very importand and almost a cardinal Constitutional issue. After all, the issue is one of fundemental liberties of Malaysians as provided by the Federal Constitution and not about Islam. It so incidental that in this case the religion being professed is Islam but this does not detract from the constitutional issue which begs to be argued and determined. The Syariah Courts clearly do not have jurisdiction over this matter.

Malaysia must be the only Commenwealth country where a Constitutional law issue is being dismissed by the Courts because the litigant has used a wrong name!

That's the inconvenient truth of it all.


Oldstock said...

Salam Sdr Art,

I have read the MI story and note that the CoA judges were Justice Tengku Baharudin, Justice Vincent Ng and Justice Sulong Mat Jeraie. The decision was 2-1 against. We can sort of guess which judge voted for the appellant. It would be interesting to hear his point of view.

As it is, what hope have we, the ordinary citizens of Malaysia, when the top justice officials in the country are not brave enough to come up with the correct decision but rather hide behind technicalities.

Daef said...

Art Meister,

What disgusts me even more is that the judges like Tengku Baharudin and Sulong Matjeraie are unable to divorce their religion from their duty. They have forgotten that they are judges for all and not just the Muslims. They cannot decide on the basis of their religious convictions and claim Fardu Kifayah.

If they do then they have to resign because they are unfit to be judges as they have demonstrated that they cannot decide a case simply on the facts and a fair unassumed interpretation of the legislation before them.

If you read the Subashini Court of Appeal decision, you will notice that Hasan Lah and Suriyadi ducked the main issues by 'framing' only 2 issues to be decided. If you read the Gopal Sri Ram dissent you would have thought that the former 2 heard a different set of arguments from the latter.

This is the type and quality of intellectual dishonesty we get from our judges, especially those Muslim ones with something to prove. Sad and pathetic.

animah said...

It appears to be endemic in Malaysia that we are incapable of taking responsibility for our actions, and we cannot make a difficult decision and stick by it.

I see this happening so often around me, it is sickening. If one can't make a decision, why be a judge?

donplaypuks® said...

If the law is an ass, then when it comes to Islamic issues, many of our 'respected' judges are stubborn MULES.

The number of non-Malay Muslims who wish to convert out becoz of failed marriages or death of spouses must be so few, that the open biasness shown by these MULES bears no relation whatsoever against the zero % threat to Islam.

As I have said before, we have come to a point in M'sia's political development where the only hope is for a change in Govt and with it a lock, stock & barrel clean-out of all three arms of Govt.

Old Fart said...

Ah, but don't they sound oh so clever in running away from their own conscience? These judges are an abomination to their own religion because they dare not come out and say it like it is whether we like it or not.

If Islam tells you that you cannot leave the religion. Then say so and period la! Is Islam such a coward of a religion that it can only defend itself through deceit and sleight of hand? Does Islam lack the fortitude and the forthrightness needed to say it as it is?

Only when it is deficient does Islam require the cowardly approach taken by its followers, as in this case, the two judges, in dealing with an affront to the religion, as some of its followers see apostasy to be.

Most Christians look at one of their own leaving Christianity to convert to Islam look at it is as no more than ridding oneself of bad rubbish.

So what's the problems folks? Is it more a fear of if you let this one pass and the next one pass, you might soon find yourself confronted by the possibility of thousands of Malay Muslims wanting to apostasise as well? So what anyway?

Mr. Smith said...

I remember one famous lawyer declined to be appointed judge because he was against capital punishment. He is what I call a man with principles.
As for our present crop of judges there is nothing much for me to say that is already not known.
In a split decision, it is always the non-Malay who is the dissenting voice.
On religion matters, Malay judges make decision on technicalities e.g why put a comma in place of a full stop. Application dismissed.