Friday, August 6, 2010

Judicial Capitulation

Tengku Razaleigh Hamzah recently hurled a potent yet distressing contention that we have become “a sick country” as a result of being fractured and divided along communal lines.

Merely days later, we get another unambiguous and ominous illustration of precisely how desperately the country’s health is deteriorating. Judicial Commissioner Yaakob Sam declared that Banggarma, a 28-year-old ‘Hindu’ mother, is officially a ‘Muslim’ – and not as she herself insists, a Hindu. 

According to Yaakob Sam, the document verifying Banggarma’s status, who was a Hindu, that she was converted to Islam – at the age of eight, and while in an orphanage – is indeed valid to substantiate the fact that she is a Muslim.

This, of course, despite her adamant insistence – and what any reasonable person ought to be able to infer – that as an abandoned eight-year old in an orphanage, she could not and should not be deemed as having been competent to have made such a decision voluntarily.

To add salt to the wound, Yaakob Sam’s so-called civil judgment also asserts that Banggarma’s dispute about her forced conversion ought to be taken up by the Syariah court.

Herein lies the absurdity of our judiciary. These and other such cases revolving around disputes about individuals’ religious status is precisely how our secular courts have capitulated on their constitutional responsibility and mandate.

If indeed Banggarma insists that she is not a Muslim – and never has been a practicing one – despite what the conversion papers claim, where and what is the legal basis for transferring jurisdiction of the case to the Syariah court?

Further, if by her insistence, she is not a Muslim, is it not the case then that our civil courts have in fact failed in protecting her from being subjected to a religious court she does not believe in – and one that ought not to have jurisdiction and authority to adjudicate on her matter?

Even more perplexing is the absurdity of the civil court’s capacity to affirm based on the conversion papers – the very documents which Banggarma is claiming are invalid given the age and circumstances under which she was apparently converted – that she is a Muslim.

If indeed there is a huge cloud over the circumstances surrounding her conversion when she was eight years old, the civil courts should be responsible and minimally judicious by thoroughly examining and resolving any dispute surrounding the circumstances of someone who was clearly not a Muslim prior to the disputed conversion.

This should be the bare minimum a civil court ought to be expected to resolve before reverting and subjecting someone to a religious court. Yet, Yaakob Sam seems to have been unconcerned about the critical and central issue of the child’s status and conditions under which she was converted back in 1988 – a perfectly legitimate concern of the civil courts to examine and resolve. Instead, the commissioner chose to simply take the documents of conversion at face value and declare that based on the claims in the conversion papers, she is a Muslim.

The implications of such judgments ought to be chilling – that is, if you care about whatever credibility there may be left in our civil judicial system. Rather than keeping the lines between the civil and Shyriah courts clear, decisions such as these in fact deprive individuals, and especially children, who have been potentially victimised from receiving adequate and proper consideration in the civil courts.

For all practical purposes, in rendering this decision, the court has refused to exert its proper and constitutional role in protecting those – and especially the most vulnerable in our society - who might have been discriminated against on the basis of religion.

Imagine the absurdity of this legal situation where the civil court is asserting that it has no jurisdiction in deliberating the merits and the circumstances surrounding Banggarma’s conversion, but it is nonetheless exercising judicial authority in affirming that she is a bona fide Muslim. 

Through such a ruling, it has as a matter of fact, exercised authority on a religious matter and yet at the same time ignored its responsibility and duty to exercise judicial due process over a civil matter of potential discrimination.

The least the court owes us all – and Banggarma - is the opportunity to explore and adjudicate on the merits of the claims of alleged victimisation and discrimination.

The persistence of such judicial posture, or more precisely, the lack thereof, further compounds the rapidly diminishing faith and confidence of the common person in the credibility of the civil courts. We’re left to ponder if such persistent capitulation and, for all practical purposes, emasculation of the civil court vis-a-vis the Shyriah court isn’t ultimately a sad commentary of the erosion of our civil rights.

But such are the realities and ailments of our judiciary. 

G. Krishnan