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Friday, December 28, 2007

Federal Court Landmark Decision

On Thrusday the Federal Court (the highest court of the land) decided on two interesting decisons and I shall seek to summarize it and highlight its profound importance to the public

The Case of Subashini

A sad case where when family relationship turns sour and children are left to pay the price. In summary Mum and Dad got married. Mum and Dad have two kids, both minor (that means the kids are below 18). As a minor, kids have very limited right and no right to make decisions thus this "Important Responsibility" is left to the parents (Sadly for Kids the separation has made them the Guinea Pig of the battle). Dad converts and embraces Islam. Dad and Mum have not legally Divorced. Dad wants to claim custody through Syariah Court. Mum has no right to appear in Syariah Court. Dad and Mum married under Civil law thus logically they should be divorced by the same court. Dad Converts one of the Children. A real mess isn't it?

Federal Court is looked upon as the supreme arbitrator where there is conflict or confusion in the law. Faith is placed for them to decide,clarify and bring an answer.

Their Decision

1. The issue of Divorce thus also the issue of custody should be decided by the Civil Courts but does not eradicate the rights of the Syariah Court.

2. The Father as a Parent has the right to convert the Child.

Note: This case was dismissed on the grounds of technicality, In this case by failing to comply with a stipulated timeframe thus It will be decided by a High Court again upon a new application.

Significance

The Conflict of Syariah and Civil Courts have been given some clarity in the aspect that Civil Courts is the right place to pursue any remedy. But note without a definite and clear decision it is subjective to the court of the day.

The Disturbing issue is the ability to convert the child and sadly the child has no choice on this issue.

Conclusion

Parliament should rationalize the jurisdiction of both this courts, making it clear who has jurisdiction on which issue. I would strongly support that the Children be given a right of choice upon turning 18.


The Case of The Professor becoming a JC

First what is a Judicial Commissioner (JC) ? A JC can sit as a judge in the High Court. For those not familiar with the court system..this is a brief outline of courts

MAGISTRATE COURT ==> SESSIONS COURT ==> HIGH COURT ==> COURT OF APPEAL ==> FEDERAL COURT

Court of Appeal and Federal Court only hear appeals and don't conduct trials. They hear only appeals on points of law or facts raised. Thus the High Court is the Highest Court when you can have your trial and it is well respected with learned judges. The Professor is required to have been practising as an Advocate and Solicitor for 10 years. The conflict arises as she has not been in practice for 10 years.

Decision
Yes, She is qualified and it is interesting to read the rationale behind the decision as it was a split decision

Comment
The term Practising as an Advocate and Solicitor means she must have been working as a lawyer which would also inevitably lead to court attendance and being knowledgeable in court procedure and practice. This is important as Court Procedure and Practice is Different than what is in textbooks. Apart from that as a practising Advocate and Solicitor, She would not not have been a stranger to law in action. But in her Defence she is knowledgeable and talented based on her reputation in University Malaya, The Talent and Ability to be a great judge is special as it requires a vast amount of knowledge and the ability to understand and interpret the law. In simple terms it requires profound intelligence. The law changes constantly and must adapt to the surroundings and development but must maintain its integrity and staunch belief in the idea of justice and fairness.


2 comments:

x said...

HI there,

Thanks for dropping by my blog. Hope you will drop by more often:P

Anyway, it is sad to see so many married couple divorcing , and yeah it is true that the one paying for it are the children.

The people these days just aren't trying anymore :(

BTW
Happy New Year to you :)

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