On a personal level, you have to feel happy and relieved for Tan Ean Huang, the benefactor of a Penang Syariah Appeal Court order this morning that allowed her to revert to her Buddhist faith, holding that her earlier conversion to Islam, to facilitate her marriage to her then Muslim partner, was not valid.
You can read about this in the Malaysianinsider.
I’ve handled enough of these cases to know the trauma that Tan would have gone through leading up to the presentation of her case before the Syariah Court and right up to the decision this morning.
So, yes, I’m truly happy for her.
Now what if the court had said no, she cannot revert to Buddhism?
Then what?
Should any judge of any court, civil or Syariah, have such a power?
After all, Article 11 (1) of the Federal Constitution confers on ‘every person’ the right to profess and practise their religion.
So when was Tan’s constitutional right to profess the faith of her own choice suborned to the power of a syariah judge to say ‘ay’ or ‘nay’?
The Syariah Court’s reasoning in Tan’s case appears to be that as her earlier conversion to Islam was not valid, she was not a Muslim in fact and as such could formally renounce.
”Muslim in fact’ and ‘Muslim in law’?
Whatever next?
If she was not Muslim when she presented her application to court, did the Syariah court have jurisdiction to hear her case?
Item 1, List 2, 9th Schedule of the Federal Constitution confines the jurisdiction of the Syariah Courts “only over persons professing the religion of Islam”.
Now, did Tan go to the Syariah Court saying ‘I am a Muslim and want to get out’ or ‘I’m not a Muslim’?
And if it was the latter, where was the jurisdiction of the Syariah court to hear her case?
The law is trite that the Syariah court, being one of limited jurisdiction, could not have acquired the jurisdiction to hear Tan’s case merely by her voluntary submission to that court, if the foundation of her application was that she was not a Muslim.
In an interview in the Sun in 2006, I was asked the following question :
There have been some calls for non-Muslims to seek redress through the syariah courts since Kaliammal’s case. Is this one way to resolve the issue?
My reply :
This call read in conjunction with the submission by the senior federal counsel in Moorthy’s case that even if the widow was left without a remedy, the civil court must refrain from entering upon the dispute as it lacked jurisdiction, is firstly, in my view, untenable in law and secondly and more importantly, a very dangerous suggestion which must be resisted at all costs.
It is legally untenable for non-Muslims to seek redress through the syariah courts because the 9th Schedule of the Federal Constitution confines the jurisdiction of the syariah courts to ‘only over persons professing the religion of Islam’. This jurisdiction cannot be enlarged by submission.
It is also very dangerous because non-Muslim litigants confronted with issues as in the Moorthy case may, out of frustration with the self-inflicted impotence of the civil courts, go to the syariah court for relief. The syariah court may give the relief sought in some cases, and may refuse in others. It is unlikely that jurisdiction is going to be challenged. Any orders obtained in the syariah court, if challenged in the civil court, will probably meet the same fate as in Moorthy’s.
In time, it will be argued that by the doctrine of custom and usage, as Prof De Smith puts it ‘the ultimate grundnorm’ has shifted.
[Editor's note: 'Grundnorm' is a German word that means 'fundamental norm', and is used to denote the fundamental order that forms a legal system's underlying basis].
The push to make this an Islamic state may [then] have been achieved.
Am I making a mountain out of a molehill?
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