When the cabinet holds court

The cabinet's decision last Wednesday to outlaw talaq (Muslim divorce effected by males only) via SMA was seen in many quarters as laudible.

Muslim women's groups had complained that talaq divorce by Muslim men in the state Syariah courts is now made much easier by SMS, while women have to go through arduous procedures to effect a divorce.

According to Women and Family Development Minister Shahrizat Abdul Jalil, divorce by SMS was not only an insult to women, it also tarnishes the image of the Syariah and gives a bad impression of Muslim men in Malaysia.

The case in point was between Shamsudin Latif and Azida Fazlina Abdul Latif. They had been married for some 18 months.

From accounts in the press (the case has yet to be reported), the husband sent a SMS to his wife on April 18 to the effect: "Kalau engkau tak keluar dari rumah mak bapak engkau, jatuh talak tiga." (If you do not leave your parents' house, you are divorced by three talaq).

The case was heard by Syariah judge Mohamad Fauzi Ismail of the Gombak Timur Syariah lower court (Federal Territory, Kuala Lumpur) on the wife's application. The court ruled on July 24 that the divorce by triple talaq communicated via SMS was valid.

The wife gave evidence that the message was from her husband and the latter affirmed the same. This was all the court needed.

It ruled that the pronouncement conveyed by SMS had complied with the legal requirements of a valid talaq and that it took effect on the date the SMS was communicated.

A divorce effected by three talaq is an irrevocable divorce (bain kubra). This means that the parties are not permitted to marry one another again.

This is the most severe form of Muslim divorce. It is not known from the accounts in the press whether the husband was fully aware of the effect of a triple talaq by the time he went to court.

It was reported that his wife alleged in court that her husband had previously sent her a talaq SMS message, but had withdrawn it. The press accounts did not report how this evidence was viewed by the learned judge.

In any case, the husband confirmed in court that he sent the triple talaq SMS on April 18. There is no report that he denied or retracted this particular message.

The former chief Syariah judge for the Federal Territory, Syeikh Azmi Ahmad, has expressed the view that the National Fatwa Council had agreed on pronouncement of talaq by SMS.

He claimed that Syariah judge Mohamad Fauzi may have been in error, only in the execution of this fatwa (religious ruling), in deciding on that the talaq took effect on April 18 and not from July 28 when the court ruled on its validity.

With due respect to Syeikh Azmi, a fatwa does not operate as a binding precedent in court unless it is issued on the facts of the particular case. A general fatwa is at best a guide to the court. A judge is duty-bound to consider the facts before him and apply the law according.

The import of Syeikh Azmi's statement is the fact that the cabinet may have even sidestepped an institution, the National Fatwa Council, which apparently had made a ruling on what may have been perceived as a contentious matter.

On a related note, there appears to be some confusion of the roles of the National Fatwa Council, Islamic Development Department of Malaysian (Jakim) and the minister in the Prime Minister's department, Abdul Hamid Zainal Abidin.

Both Jakim officials and the minister were in attendance when the cabinet met on the 'talaq by SMS' case.

The case inspired much agitation which culminated in the cabinet 'holding court' on July 30 to rule against the talaq by SMS. The decision was seen to bring back dignity to Muslim divorces in the country and respect for the Syariah.

In making the decision, the ministers and civil servants involved did not appear to consider whether their deliberations could cast a cloud over the independence (from the executive) of the state judicial system and the administration of justice.

This recent executive excursion has the public impressed with the idea that politicians are re-making judicial decisions.

Are our Syariah judges not to be trusted with the job of adjudicating, such that the executive has to step in to set them back on the straight path?

Jubilation may be misplaced if we are to accede to an extra-legal process which undermines the principle of the rule of law and the doctrine of the separation of powers. Regardless of some of our misgivings about the administration of justice at state level, there must be regard for due process.

Malaysia is a federal state with a unique parallel system of state Muslim laws and federal civil laws. State Syariah courts, which have historically adjudicated on Muslim family law matters, now exercise a limited jurisdiction on criminal laws.

In the federal government's 'islamisation of laws' programme, efforts include the upgrading of the state Syariah court system. This includes the demarcation of jurisdictional boundaries between the Syariah court and the Civil court, effected by an amendment to the Federal Constitution in 1988 (Article 121A).

Recent appointees to the Syariah court bench include judges trained in both Civil and Islamic laws. A good number are graduates from the Kulliyyah of Laws of the International Islamic Universiti Malaysia.

State laws include a variety of legislation including civil (mal) and criminal (jenayah) procedure codes.

The Syariah courts are granted powers of revision and appeal (within the state Syariah court system). As rightly pointed out by Syeikh Azmi, the powers of revision belongs to the court and not to ministers.

If there is a great deal of unhappiness about the ruling on talaq via SMS, one would have thought that the matter would have gone on revision or on appeal.

The other avenue is by way of a change in legislation or law reform with clear or expressed provisions in the family law that all divorce by talaq cannot be effected unilaterally by male Muslims.

The courts in that case must be empowered to order divorce irrespective of pronouncements of talaq by male Muslims unilaterally by SMS or whatever devices.

In fact, current Malaysian family law legislation ascribes to the classical theory that the talaq is the right of the Muslim male. The Malaysian Syariah court is empowered to verify the validity of a talaq pronounced unilaterally by the Muslim male or communicated in whatever form including by sign, spoken word or letter.

The Malaysian law as passed by the state legislature merely encourages males to effect a talaq divorce in court by penalising unilateral pronuncements. The law does not invalidate such pronouncements.

If the court finds that the talaq pronounced prior to the parties' attendance in court has not complied with the requirements of a valid talaq, there is no divorce.

The parties are still free to file a proper application for divorce. This does not prevent the husband from effecting a talaq divorce in court.

In some Muslim countries like Tunisia, the law does not recognise the unilateral pronouncement of talaq. All divorces are filed and heard in court. This perspective stems from the same textual sources on talaq.

The cabinet's decision to 'hold court' over talaq via SMS may have been ill-advised by minister Abdul Hamid and Jakim officials. There is lack of clarity of their powers and functions in relation to the State Syariah courts.

This seeming confusion may perhaps have arisen through the federal control of Islamic matters through institutions like the Pusat Islam and Jakim.

Under the Federal Constitution, Islam is a state matter. The Ruler of each state is head of the religion in that state. There are 13 states. Each state has its own state courts and its own law on Islam.

At some point in time, it was seen to be administratively useful to facilitate the streamlining of concerns on Islam through the centre. It helps uniformity in administration including the administration of Islamic law in all 13 states.

It would appear that in the interest of streamlining the administration of Islam in all states, there may have been over-enthusiasm in controlling the courts as well.

Are state courts answerable to ministers and the federal cabinet? Do we want to insist that our state Syariah courts should be independent and be seen to be independent?

The state Syariah court is part of the parallel legal system we have historically inherited. It does not historically possess the powers of the 'superior' High Court of the Civil law system. Nevertheless the state Syariah court is not legally constituted as a lesser court or a lesser tribunal to the civil courts.

In this light, the respect accorded to the state Syariah court should be similarly premised as the civil courts under known principles of constitutionalism where the executive is separate from the judiciary.