Are you surprised? Well, I am not. The Federal Court rarely surprises me nowadays.
Take the decision of the Federal Court in Diana Nelson Tanoja v PP  3 CLJ 1, for example. In this case, the Federal Court - the highest Court in the whole land - in all its wisdom, held that in Malaysia, under our law, the Court can decide a criminal case on its own without hearing legal arguments at the close of the defence case. And this was a case which attracted the death sentence, no less. (A well written criticism of this case can be read at LoyarBurok).
Malaysia must then be the only country in the Commonwealth where the Court is not obliged to hear legal arguments (or, in legal jargon, submissions) before deciding to convict or acquit an accused person!
Meanwhile, the recent Federal Court decision in the Shamala case is not the first time the Federal Court had chosen not to rule on an issue which is important to the nation, such issue having far reaching consequences to the society at large.
I have lost count of the number of cases which involve inter-faith conflicts arising from conversion and re-conversion of a person from one faith to another - often from one faith to Islam and back to the original faith -where the Federal Court had chosen not to make a ruling, preferring to dismiss the case on technicalities instead.
These inter-faith conflicts often take place in marital or inheritance disputes although disputes involving burial rites are also proving to be on the rise lately. Although these disputes may sound personal in nature, the repercussions and ramifications from such disputes, and the way they are resolved, bring with them wider and deeper societal impact. At the rate we are going and looking at the way we are handling these issues, it is clear that a time bomb is waiting to explode on this front.
Malaysia is a country where even the Constitution itself defines ethnicity. And as if to muddle it further, even the concept of Malay-ness in the Constitution is tied up to a particular faith, namely, Islam. To further spice things up, there are claims from our leaders and layman alike that citizens of certain ethnicity possess and enjoy "special rights."
Such is the situation here. It does not take a legal expert to note that different faith and ethnicity in Malaysia bring with it different legal dynamics, in terms of personal laws, particularly concerning inheritance, matrimonial disputes and child custody.
What is worrying to me is not the fact that such disputes are taking place. In a multi-ethnic-faith-culture country such as ours, the existence of such disputes is only to be expected. The disconcerting fact is that we seem to be unable, unwilling and unprepared to properly deal with such disputes in a just and fair manner, in accordance with the laws of this country.
What is even more worrying is the political nuances which such disputes bring and the fact that such disputes are being handled as political hot-potatoes rather than what they are and should be, namely, personal and legal disputes.
During the hearing of the Shamala case in the Federal Court, I am made to understand that one of the learned Judge asked the Counsel whether this issue is of social or political nature. With respect, why would the Court want to know from the Counsel whether the case is of political nature or otherwise?
The Shamala case involves a referral to the Federal Court by the Court of Appeal. The referral was made by the Court of Appeal BY CONSENT of all the parties involved. When the Court of Appeal was considering to make the referral, all parties CONSENTED to the referral being made. Purging of Shamala's alleged contempt was not raised at all at that time.
The referral involves the following questions, which were to be answered by the Federal Court, namely:-
1. Whether Section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires (beyond the powers) of Article 12 (4) of the federal constitution (specifically concerning the right to determine the religion of the children under the age of 18 shall be determined by the parent or guardian) and Article 8 regarding equality rights;
2. Whether the same section in state law is inconsistent with federal law namely Section 5(1) of the Guardianship of Infants Act 1961, and is therefore invalid;
3. Regarding Article 121 (1A) of the federal constitution, where a custody order for children is made, which court, between the Syariah Court or the High Court, is the higher authority?
4. When there is conversion of children of a civil marriage to Islam by one parent without the consent of the other, are the rights of remedies for the non-Muslim parent vested in the High Court?
5. Does the Syariah Court have jurisdiction to determine the validity of conversion of a minor into Islam, once it had been registered by the Registrar of Muallafs (Registrar for newly-converted Muslims)?
The questions, as framed, consist of important Constitutional issues. The ruling by the Federal Court on such questions carry far reaching consequences on Malaysia as a whole, as opposed to only Shamala, her kids and her husband.
Is it not obvious from the questions as framed that the referral was not about the personal life of Shamala, her kids and her husband alone? Is everybody within the corridors of the law well appraised of the differences between an order in personam and an order in rem, what they mean and the effect of the two? Or do I need to spell that out?
Well, just in case. An order in personam just binds the party to a case. In contrast, an order in rem binds the whole world. Any ruling by the Federal Court in the Shamala case would bind the whole world as the ruling would affect Shamala's marriage, the status of the children's faith, the husband's right and his children's choice of faith and many more matters.
It is, in my view, from this perspective that the Shamala case ought, with respect, to have been approached as opposed to the narrow approach taken by the Federal Court in its decision.
The Federal Court refused to entertain the referral apparently because Shamala was in contempt for breaching a High Court order which required her to bring her children to Malaysia. Essentially, the Federal Court was of the opinion that Shamala was not entitled to pursue her Constitutional referral to the Federal Court because she was in contempt. (The full speech of the Federal Court can be obtained from here.)
With respect I take issue with some aspects of the decision.
First and foremost, the referral was made by consent of all parties in the Court of Appeal. Granted, no Court could be seized of jurisdiction by consent of parties. But in the Shamala case, jurisdiction was never an issue. If all the parties had consented to the referral being made to the Federal Court on the Constitutional issues, what right was there to object to the referral on the basis of contempt? Why wasn't the contempt issue raised at the Court of Appeal? In that situation, what right did the Federal Court has to focus on the contempt issue instead of the merit of the referral?
Secondly, was there a contempt order against Shamala? None! There was no finding that she was in contempt. Why then and on what basis must the Federal Court embarked on the issue of contempt as if it was established that Shamala was in contempt?
In this respect, the learned Judge in Dr. Madan Gopal Gupta vs The Agra University And Ors. AIR 1974 All 39 observed,
"In my opinion a party in contempt purged its contempt by obeying the orders of the Court or by undergoing the penalty imposed by the Court. The present case, no order of conviction was passed against the respondents."
Similarly, is it not part of our fundamental justice principle that a person cannot be condemned until he or she has been fairly heard?
Thirdly, the true legal principle which requires a person in contempt to first purge his or her contempt before being allowed to proceed in a matter must be closely looked at. With respect, I submit that the Federal Court had misapplied the law.
The Federal Court referred to the case of Hadkinson v. Hadkinson, (1952) 2 All ER 567 in its decision. That is the locus clasicus. A closer look at the judgment of Lord Denning in that case would be helpful to understand the true ambit of the principle involved. Lord Denning said:
"Those cases seem to me to point the way to the modern rule. It is a strong thing for a Court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a Court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance. In this regard I would like to refer what Sir George Jessel, M. R. said in a similar connection in Ree Clements & Costa Rica Republic v. Erlanger. (1877) 46 LJ Ch 375.
"I have myself had on many occasions to consider this jurisdiction and I have always thought that necessary though it be, it is necessary only in a sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found. Probably that will be discovered after consideration to be the true measure of the exercise of the jurisdiction." (emphasis are mine).
Four things are clear. Firstly, to not allow a person to pursue a matter on the basis of his or her contempt is a "strong thing" and an "extreme measure." Secondly, the principle is only justified by "grave considerations of public policy."
Thirdly, the Court would only disallow the person from pursuing a matter in Court on the ground of his or her contempt if the contempt impedes the course of justice. On this, Halsburry's Laws of England, Simond's edition, page 42, paragraph 73 says,
"Even the plaintiff in contempt has been allowed to prosecute his action when the defendant had not applied to stay the proceedings. Probably the true rule is that the party in contempt will not be heard only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obedience?" (quoted from Dr. Madan Gopal Gupta vs The Agra University And Ors. AIR 1974 All 39).
Fourthly, the Court would do so if no other remedy can be found.
Let us examine whether Shamala's alleged contempt impeded the course of justice. The referral to the Federal Court was on Constitutional issues. Any ruling on those issues would amount to an order in rem, which is an order binding the whole world and not only Shamala and her husband.
The ruling on those issues would also bind Shamala's children. Their rights to profess and practice a certain faith of their choice would have been determined by the Federal Court. The ruling would also give precedents to all other cases and would bind all other children and their parents as well as Government agencies such as JAKIM and others.
The ruling will put to closure all the inter-faith conflicts and the incidental personal laws issues arising from such conflicts.
Now, how does Shamala's act in taking away the children from Malaysia impede justice in the referral to the Federal Court? I can't see how.
Granted, the facts in Hadkinson v Hadkinson are almost similar to the facts in Shamala's case. In the Hadkinson's case, the wife has taken away the child to Australia when there was an order requiring the child to be in the UK. Shamala has also taken the kids to Australia against a Court order.
But the similarity ends there. The Federal Court had failed to observe a distinct and very important difference between the facts in the Hadkinson case and Shamala's case.
In Hadkinson's, the wife/mother, married again and took away the child unprovoked and without any extenuating reasons. To the contrary, Shamala was forced to defend her children's Constitutional rights to choose their faith and also her own Constitutional rights to her children and as a parent because of her husband's conversion to Islam as well as her husband's act in converting the children to Islam.
That was a clear distinction. The Federal Court, with respect, failed to recognise, let alone appreciate, that distinguishing factor.
Granted, the legal principle disallows a person from coming to Court if he or she has committed contempt and had not purged the contempt. But the same principle does not disallow that person from defending a suit against him or her.
In Sudhir Chandra v. Raseswari Chowdhurani, AIR 1929 Cal 117, it was held that a defendant in contempt cannot claim as of right the benefit of the procedure of the Court except for the sole purpose of defending himself, and how far, these rights extend was a matter for the discretion of the Court. Though the party cannot himself come into the Court to take any advantage of the proceedings in the cause yet he was entitled to appear and resist any proceeding against him. (quoted from Dr. Madan Gopal Gupta vs The Agra University And Ors. AIR 1974 All 39).
Isn't it clear from the Shamala's case that although she was the one who initiated the proceeding, she was in fact and in law a person who was just defending herself and her children from the husband's acts? To put it in another way, Shamala was forced to come to Court to defend her rights and the rights of her children. Surely then the principle disallowing her from pursuing the case does not apply.
With respect, again, the Federal Court had failed to observe and appreciate the circumstances under which the case and referral were initiated by Shamala.
To me, the most striking factor which the Federal Court had so miserably failed to take into consideration in the Shamala's case is the public factor. The Federal Court had almost forgotten that what was before it was not an action in personam or an action which affects only the personal rights of the litigants.
Shamala's case was an action in rem, which would, if determined, result in an order in rem. The referral was on Constitutional issues, which, given the current societal and political climate in this country, greatly impact the society as a whole. Justice and fairness demanded in this referral would not be for the benefit of Shamala, her husband and their kids alone. It is for the benefit of the whole country.
With respect, the decision in Shamala's case represents the triumph of technicalities over justice and fairness. And that is, with regret, a really sad state.