Confusing laws over marriage wreckers

 

Having two sets of laws operating in parallel will, at some point, cause a conflict of interest. If left unchecked, people will take advantage of loopholes and make a mockery of justice.

We cannot compartmentalise people into Muslims and non-Muslims and then expect justice when things go wrong. In the recent case of a Muslim breaking up the marriage of a non-Muslim couple, one can argue that justice was not served.

On Dec 1, Chief Justice Tengku Maimun Tuan Mat and Federal Court judge Mohd Zawari Salleh agreed that a Muslim could not be included in a legal marital dispute involving a non-Muslim couple.

Tengku Maimun dismissed an appeal by the woman, named only as AJS, who had sought to include the Muslim woman, known as JBMH, in her judicial separation petition.

JBMH had an affair with AJS’s husband, whom we only know as RIS, and this relationship ultimately caused the breakdown of AJS’s marriage to RIS.

One thing is clear from the CJ’s judgment. A precedent has been set and many people feel that justice was not served.

The Federal Court decided that according to the Law Reform Act (LRA), the Muslim cannot be a party to this legal dispute.

The ordinary Malaysian will be under the impression that Muslims can escape justice if they were to be involved in a non-Muslim marriage dispute. How is that fair? Many may feel that they can cause marital break-ups and not face repercussions.

The dissenting judge in the appeal was P Nallini. She said that Section 3(3) of the LRA did not preclude a Muslim from being named as a party in a non-Muslim couple’s marital legal dispute.

She also ruled that courts were empowered by Section 17(a) of the Interpretation Act to look at the intent and purpose of a legislation when interpreting a provision, such as the one in LRA.

We are told that non-Muslims cannot be tried under shariah law. So, does the law cherry pick who it decides to prosecute under shariah?

In March 2017, a Muslim husband contacted the religious authorities in Terengganu (JHEAT) to report that his wife, a Muslim, was having an affair with a non-Muslim man.

Officers from JHEAT raided a hotel in Kuala Nerus and caught the Muslim woman and her non-Muslim lover. The khalwat raid conducted in the early morning happened after the husband had seen the couple entering the hotel.

The couple was investigated under Section 29 of the Terengganu Syariah Criminal Offences Enactment (Takzir) 2001.

Why was the non-Muslim man investigated under shariah law in the Terengganu case? Did he have to convert, as has happened to many non-Muslim single men caught having affairs with Muslim women? Weren’t we told that only Muslims could be investigated under shariah?

In the petition involving the Federal Court, the Muslim lover, JBMH, could not be included in the marital dispute and subsequent appeal lodged by AJS.

All of this is most confusing. In Terengganu, a non-Muslim lover was investigated under shariah law. In Putrajaya, the Muslim lover cannot be investigated under civil law.

The only thing that is clear is that having two sets of laws has the potential to do a lot of damage. The rights of non-Muslims are alleged to be slowly being eroded. It now appears that they cannot get justice either.

The views expressed are those of the writer and do not not necessarily reflect those of MMKtT.