A former chief syariah judge described Minister in the Prime Minister's Department Abdul Hamid Zainal Abidin as having been misguided in his intention to prosecute Shamsuddin Latif, the man who created a national controversy by divorcing his wife via SMS.

"The government has no grounds to prosecute Shamsuddin (Latif) because, among other reasons, his application for divorce fell under cerai ta'liq. Technically, Shamsuddin has not done anything wrong," former Chief Syariah Judge (Federal Territory) Syeikh Azmi Ahmad today.

Abdul Hamid yesterday announced plans to prosecute Shamsuddin for pronouncing talaq on Azida Fazlina Abdul Latif outside the court.

"The minister appears to be misguided," he said.

Judge's decision

There are two kinds of divorce ( cerai ), explained Azmi, adding that the conventional cerai occurs when the husband formally applies for a divorce from his wife in court in front of a judge.

Cerai ta'liq

, however, is when the husband states his intention to divorce his wife when certain conditions occur.

"Shamsuddin had issued a warning, via SMS, to his wife, stating 'if you do not leave your parents' house, you will be divorced.' In court, therefore, the case was categorized as cerai ta'liq . It is still up to the judge to decide whether to execute the divorce or not," said Azmi

Yesterday, Azmi said that the (Gombak Timur) Syariah court judge had made a mistake by affecting the 'iddah (a three- month separation period preceding the formal divorce of the couple) from the date of the SMS in question.

According to the syariah, separation leading to divorce should only take effect from the date of the judge's approval, he added.

The syariah divorce case that provoked protest from many quarters began last Thursday when a Gombak Timur syariah court accepted a pronouncement of talaq by SMS sent by Shamsudin to Azida.

Azmi said that Abdul Hamid's declaration that Shamsuddin would be prosecuted for pronouncing talaq outside of the court was incorrect as technically, Shamsuddin had not committed any wrongdoing.

Authorities

"Secondly, if anybody were to review the case, it cannot be the Federal Territory Syariah Department, cabinet ministers or Jakim," Azmi said.

"The only authorities empowered to review the case are the Selangor Chief Syariah Judge, or the presiding judge, Mohammad Fauzi, himself," he added. Gombak Timur falls under the jurisdiction of the Selangor syariah court.

Azmi, a former member of the National Fatwa Council, also questioned whether Abdul Hamid had purposely wanted the Federal Territory syariah court to conduct the prosecution because as the highest religious officer in the territory, he has the power to issue such an order.

"Or is it because the minister feels that the Selangor syariah court is less likely to be easily controlled," asked Azmi who is also Keadilan vice-president.

He added that such a statement from the ministers tantamount to political interference into the jurisdiction of the syariah court.