Wednesday 4 April 2007

Bar Council Says Its OK to Discuss Subashini's Case Pending Decision of Federal Court

From The Sun : Read HERE


"Public comments about the R. Subashini case, which is pending in the Federal Court, are NOT subjudice"
-Malaysian Bar Council

"....In Malaysia, the Federal Constitution, the Rukun Negara and Vision 2020 encapsulate the rights, hopes and aspirations of the population in a way that no other documents do. The integrity of these documents must be defended and promoted, especially the first."
-Raja Muda of Perak

Mohd Shafi Abdullah, the husband of R. Subashini, has lodged a report against the Bar Council, Non-Governmental Organisations, non-Muslim religious bodies, politicians and a few individuals for allegedly making prejudicial allegations contemptuous comments against the March 13 Court of Appeal decision.

In a press statement read out by his lawyer Zainul Rijal Abu Bakar, he said:

"All parties should realise that this case is still in dispute and Subashini has made an application for appeal in the Federal Court, therefore it is important to all parties to not air any comments / opinions and views on the case to avoid prejudice against Shafi's case in court. This is subjudice! .
Our client will not hesitate to act against any prejudicial statements to his case after this to protect his interests and the integrity of the Court of Appeal judgment."
Mohd Shafi, formerly T. Saravanan, said among the allegations against him was that he had embraced Islam to shirk his responsibilities under civil laws and that the March 13 decision was unfair. Mohd Shafi said in his report that he was making the report to protect his interests and that of his case, pending in court. Read here for more

Excerpts: Read here for more

Public comments about the R. Subashini case, which is pending in the Federal Court, are NOT subjudice, and that public comments on matters of public interest, particularly where it involves constitutional guarantees, CANNOT be sub judice or contempt, the Bar Council said today.

Ambiga Sreenevasan, the chairwoman of the Bar Council issued a statement on the lodging of a report by Subashini's Muslim-convert husband, Mohd Shafi Abdullah, against the Bar Council, non-governmental organisations and several individuals for allegedly making prejudicial and contemptuous comments against a March 13 Court of Appeal decision.

According to Ambiga Sreenevasan, the chairwoman of the Bar Council:

"This fear is unfounded, and the argument is WITHOUT basis.

The law of contempt and sub judice in this context is applicable mainly in relation to a jury or where there are vulnerable witnesses who may be influenced by public comments.

It certainly does NOT apply to JUDGES and especially, as in this case, the Federal Court judges who will consider points of law on the materials before them, uninfluenced by extraneous matters and comments in the public domain...."
R. Subashini, who was told to go to the Syariah Court to fight for her matrimonial rights, wants the Federal Court to decide whether the High Court has exclusive jurisdiction to grant a civil divorce to a couple, where one spouse has converted to Islam. This was one of the nine questions of law contained in R.Subashini’s application for leave for the Federal Court to determine.

Among the other questions proposed for the Federal Court’s determination:

  • whether it is an abuse of process for a spouse in a civil marriage to unilaterally convert the religion of a minor child without the consent of the other parent; and

  • whether Article 121 (1A) of the Federal Constitution prevents the High Court from granting interim injunctions, where the abuse of process is effected at the syariah court through unconstitutional and jurisdictionally incompetent filing of proceedings in the syariah courts and unilateral conversion of a minor child from a civil marriage, by the converted spouse.
  • Article 121 (1A) states that the civil courts do NOT have jurisdiction over matters within the jurisdiction of the syariah courts which, constitutionally, ONLY has jurisdiction over Muslims.

    ( Read HERE " Report on the Parliamentary Roundtable on Article 121 (1A) in Parliament (Committee Room1)" held on 5th January 2006)

    (Read here "Scope of Islamic Law in Malaysia and Status of Religious Freedom")

    In seeking an early hearing, Subashini gave the following grounds:

  • the issues raised in the leave application pertained to the imposition of Islamic law on non-Muslim citizens, which fundamentally affects the lives of the entire non-Muslim community;

  • the leave application raised issues regarding the relationship between the Civil High Courts and Syariah Courts established by various state legislatures which will have a significant impact on the proper functioning of the judicial arm of the government and the maintenance of the rule of law in Malaysia


    Read this paper by Dr. Noraini Othman, " ISLAM AND THE STATE IN MALAYSIA: A PROBLEM OF DEMOCRATISATION AND PLURALISM" - paper delivered at the Constitution, Democracy and Islam Conference at the German Institute of Federal Studies, University of Hamburg, Hanover, Germany.


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    and the following 8 judges

    1. Dato' Abdul Hamid bin Haji Mohamad

    2. Dato' Alauddin bin Dato' Mohd. Sheriff

    3. Dato' Arifin bin Zakaria

    4. Dato' Bentara Istana Dato' Nik Hashim bin Nik Ab. Rahman

    5. Dato' Augustine Paul a/l Sinnappen

    6. Dato' Abdul Aziz bin Mohamad

    7. Dato' Haji Hashim bin Dato' Haji Yusoff

    8.Dato' Azmel bin Haji Maamor

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