Sunday, April 26, 2009

Cabinet puts interest of the child first

THE cabinet of Prime Minister Datuk Seri Najib Razak should be commended for having the gumption to tackle the longstanding, highly emotive issue of the effect of one partner's conversion to Islam after a civil marriage.

On Thursday, Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Abdul Aziz made a surprise announcement that the cabinet had decided that a child's religion must be in accordance with the common religion at the time of marriage between the parents in the event that one of them opts to convert.

This decision to maintain the status quo as regards the child's religion is also in accordance with the well-established principle that the interest of the child of marriage is of paramount importance.

Nazri also stressed that conversion must not be used as a ground to automatically dissolve a marriage or to get custody of children.

He added that the cabinet also decided that a marriage solemnised under civil law could only be dissolved in the civil court.

This is indeed a landmark decision which reflects the voice of moderation and reason, something which could best be described initially as almost unbelievable.

It is reassuring to know that after so many years, it now takes a new prime minister to make it look as if resolution to this problem can be rather simple if only our leaders have the political will to do it.

By making this decision, our leaders have set a fine example to their countrymen of the importance of exercising mutual tolerance in our multi-religious country. It also lends credence to Najib's 1Malaysia concept.

The government's decision is, in fact, in line with the 1994 decision of the Supreme Court in Tan Sung Mooi (F) v Too Miew Kim, where judge Mohamed Dzaiddin, in delivering the decision of the court which also comprised Lord President Abdul Hamid Omar, Chief Justice Gunn Chit Tuan, judge Edgar Joseph Jr and judge Mohd Eusoff Chin, said trenchantly:

"Under s.51 (Law Reform (Marriage and Divorce) Act 1976), where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce and the court, upon dissolving the marriage, may make provision for the wife or husband and for the support, care and custody of the children of the marriage and may attach any condition to the decree of dissolution.

"The legislature, by enacting s.51, clearly envisaged a situation that where one party to a non-Muslim marriage converted to Islam, the other party who has not converted may petition to the High Court for divorce and seek ancillary reliefs...

"Further, it would seem to us that Parliament, in enacting sub-section 51(2), must have had in mind to give protection to non-Muslim spouses and children of the marriage against a Muslim convert...

"It would result in grave injustice to non-Muslim spouses and children whose only remedy would be in the civil courts if the High Court no longer has jurisdiction, since the syariah courts do not have jurisdiction over non-Muslims."

While the above dictum was later adopted by the Federal Court in the celebrated case of Subashini Rajasingam v Saravanan Thangathoray 2007, judges Datuk Nik Hashim Nik Ab Rahman and Datuk Azmel Maamor, who formed the majority, also ruled, rather confusingly, that the converted husband could still seek divorce in the syariah court albeit the rulings made by the syariah court would not bind the civil court.

The Federal Court went further to rule that any parent had a right to convert the child of marriage to Islam.

It held that the word "parent" in article 12(4) of the Federal Constitution which states that the religion of a person under the age of 18 shall be decided by his parent or guardian, means a single parent.

Further, reliance could not be placed on s.5 of the Guardianship of Infants Act 1961 which gives the mother equal parental rights over the child as the 1961 Act does not apply to Muslims, including the converted father.

It follows that unless a new Federal Court panel departs from the Subashini Rajasingam decision in a future case, intervention from Parliament will be necessary to give effect to the latest decision of the cabinet that any change in the child's religion must require the consent of both parents in addition to removing any overlapping jurisdictions of the civil and syariah courts.

It is hoped that the government will amend the relevant federal laws as well as to cause the state governments to make changes to their state Islamic enactments.

I pray, too, that the sultans, being the heads of Islam in the states, will give their royal assent to the legislative amendments as non-Muslims are also their subjects who look up to their royal highnesses to protect their interests.

I believe that this latest move by the Najib administration is good for the country because history has proven over and over again that moderation and fairness are vital in achieving national cohesion in a multi-racial and multi-religious society.

Hence, it is rather unacceptable for Parti Keadilan Rakyat member of parliament Zulkifli Noordin to move, though unsuccessfully, in the March parliamentary sitting to amend the Federal Constitution to state that any law which is inconsistent with the Constitution shall be deemed void, except for Islamic legislation; thereby making Islamic law the supreme law of the land.

Published in the New Sunday Times, 26 April 2009

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