(Malaysiakini) The Malaysian Bar has slammed the Federal Court for abdicating its responsibility as the “ultimate arbiter” in disputes involving constitutional matters in their refusal to decide on key issues surrounding the S Shamala case.
Bar Council vice-president Lim Chee Wee (left) said that the Shamala case “presented the Court with a clear opportunity to resolve fundamental questions that affect the public interest.
“By side-stepping these significant issues, the Federal Court failed to be decisive, and abdicated its role as the ultimate arbiter in disputes involving constitutional questions and jurisdictional conflict,” said Lim in a statement today.
He added that the court is guided by an oath to uphold the constitution, and “the Federal Court, in particular, ought to fulfil its responsibility to right an injustice, no matter how difficult or divisive the issues are”.
The judiciary, says Lim, ought to step in whenever politicians failed to use the legislative process to eliminate gaps in the legal system.
“Issues of conflicts of laws will continue to arise. Courts, lacking guidance from the supreme tribunal of the land, may continue to take inconsistent approaches in the many unresolved cases,” he said.
He blamed the resulting “jurisdictional divide” for leaving affected families of disputes without any remedy.
Lim also pointed out that the present situation can be exploited by those who want to gain custody of a child using the loophole presented in the S Shamala case.
“More parents may feel that their only recourse is to flee the country to prevent their children from being unilaterally and perpetually converted, and taken from them,” said Lim.
As a result of the long-standing custody case between Shamala and her estranged husband M Jeyaganesh, who had converted to Islam, five appeals were filed.
In April, the Court of Appeal decided that the Federal Court had to decide on five questions of constitution in order to resolve the case.
The Federal Court on Nov 12 had not addressed the five questions, but instead allowed Jeyaganesh's preliminary objection that Shamala does not have the right to be heard in court because a contempt proceeding had been initiated against her.
'Court ignored Shamala's plight'
Lim criticised the Federal Court's decision for disregarding the realities and dilemma faced by S Shamala and failed to take into account the circumstances that caused her to leave the country, hence resulting in the contempt charges.
“Insistence on an exceptionally strict rule regarding contempt of court is unjust in this instance,” said Lim.
“In exercising its discretion, the court ought to have given due consideration to the relevant factors and the interest of justice.”
Lim called upon the government to “resolve the current impasse swiftly through parliamentary intervention”.
He pointed out that the cabinet's directive in April that conversion of children should receive the consent of both parents, it has “remained a mere policy statement, without real effect”.
The relevant legislation should be “amended immediately” so that the directive could be implemented quickly, urged Lim.
Bar Council vice-president Lim Chee Wee (left) said that the Shamala case “presented the Court with a clear opportunity to resolve fundamental questions that affect the public interest.“By side-stepping these significant issues, the Federal Court failed to be decisive, and abdicated its role as the ultimate arbiter in disputes involving constitutional questions and jurisdictional conflict,” said Lim in a statement today.
He added that the court is guided by an oath to uphold the constitution, and “the Federal Court, in particular, ought to fulfil its responsibility to right an injustice, no matter how difficult or divisive the issues are”.
The judiciary, says Lim, ought to step in whenever politicians failed to use the legislative process to eliminate gaps in the legal system.
“Issues of conflicts of laws will continue to arise. Courts, lacking guidance from the supreme tribunal of the land, may continue to take inconsistent approaches in the many unresolved cases,” he said.
He blamed the resulting “jurisdictional divide” for leaving affected families of disputes without any remedy.
Lim also pointed out that the present situation can be exploited by those who want to gain custody of a child using the loophole presented in the S Shamala case.
“More parents may feel that their only recourse is to flee the country to prevent their children from being unilaterally and perpetually converted, and taken from them,” said Lim.
As a result of the long-standing custody case between Shamala and her estranged husband M Jeyaganesh, who had converted to Islam, five appeals were filed.
In April, the Court of Appeal decided that the Federal Court had to decide on five questions of constitution in order to resolve the case.
The Federal Court on Nov 12 had not addressed the five questions, but instead allowed Jeyaganesh's preliminary objection that Shamala does not have the right to be heard in court because a contempt proceeding had been initiated against her.
'Court ignored Shamala's plight'
Lim criticised the Federal Court's decision for disregarding the realities and dilemma faced by S Shamala and failed to take into account the circumstances that caused her to leave the country, hence resulting in the contempt charges.
“Insistence on an exceptionally strict rule regarding contempt of court is unjust in this instance,” said Lim.
“In exercising its discretion, the court ought to have given due consideration to the relevant factors and the interest of justice.”
Lim called upon the government to “resolve the current impasse swiftly through parliamentary intervention”.
He pointed out that the cabinet's directive in April that conversion of children should receive the consent of both parents, it has “remained a mere policy statement, without real effect”.
The relevant legislation should be “amended immediately” so that the directive could be implemented quickly, urged Lim.
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