Sunday, November 21, 2010

Time to break the impasse

By not confronting racial and religious issues, civil court judges have abdicated their duty to uphold the people’s constitutional rights to equality and freedom of religion.

ON Nov 12, much to the dismay of many Malaysians, the Federal Court declined to answer five constitutional questions of public importance on unilateral conversion of children to Islam by one parent who has embraced Islam.

The case involved Shamala Sathiyaseelan, 38, and Dr Jeyaganesh Mogarajah, 42. The couple were married on Nov 5, 1998 according to Hindu rites in Alor Setar and the marriage was registered under the Law Reform (Marriage and Divorce) Act, 1976 (Act 164). Their sons, Saktiswaran and Theiviswaran – born in 1999 and 2001 – were Hindus at the time of their birth.

On Nov 19, 2002, Jeyaganesh converted to Islam. As a ‘saudara baru’ or muallaf, he is known as Muhammad Ridzwan bin Mogarajah. On Nov 25, 2002, Jeyaganesh converted the two minors to Islam without the knowledge or consent of Shamala. Saktiswaran’s Muslim name is Muhammad Firdaus Jeya while Theiviswaran is named Muhammad Asraf Jeya.

Shamala then went to the Kuala Lumpur High Court to challenge the conversions and seek custody of the minors. Justice Faiza Tamby Chik held on April 13, 2004 that since the two minors were now muallafs, Shamala should take them to Majlis Agama Islam Wilayah Persekutuan for help and advice to resolve the issue because under Article 121(1A) of the Federal Constitution, the civil court had no competency to determine the status of the minors’ conversion.

Meanwhile, Jeyaganesh had also obtained hadhanah (custody) of the two minors from the Mahkamah Tinggi Syariah Selangor on May 8, 2003. However, on July 20, 2004, in addition to an interim order made earlier in favour of Shamala on April 17, 2003, the High Court granted Shamala ‘actual custody’ or actual care and control, and the husband, ‘legal custody’ of the children.

“However, in the actual custody, I put a caveat that the mother would lose the right to actual custody if there are reasonable grounds to believe that she would influence the children’s present religious beliefs or make them eat pork,” stressed Faiza.

It is believed that Shamala then left the country via Padang Besar together with the children, and they are said to be currently residing in Australia. Shamala is, therefore, in contempt of the High Court order.

When the matter came up before the Court of Appeal on April 28 last year, the parties consented to first refer the said five questions to the apex court pursuant to Article 128 of the Constitution.

On Nov 12, the Federal Court declined to answer the five questions unless Shamala had first purged the contempt by being present in court together with the children. The majority of the five-man bench chaired by Chief Justice Tun Zaki Azmi disagreed with the suggestion of Chief Judge of Sabah and Sarawak, Tan Sri Richard Malanjum that Shamala be given an ex­­ten­sion of time to appear in the Federal Court.

This is indeed a missed opportunity as couples in similar situations were anxiously awaiting the Federal Court’s decision in Shamala’s case. Perhaps, in adopting this hands-off approach, the Federal Court judges should have been reminded by these words of Abraham Lincoln: “I have always found that mercy bears richer fruits than strict justice.”

It is pertinent that Malaysians know what the real issues are which, regrettably, continue to be left to fester into larger issues by the executive, judiciary and legislature. To quote the Sultan of Johor’s consort, Raja Zarith Sofiah Almarhum Sultan Idris Shah, Malaysians should not shy away from racial and religious issues and deem them too sensitive to discuss. (See Raja Zarith: Don’t shy away from racial issues, The Star, Nov 17)

Essentially, the issues revolve around the interpretation of two important articles of the Constitution, namely Articles 12(4) and 121(1A).

Firstly, Article 12(4) states that the religion of a person under the age of 18 shall be decided by his ‘parent’ or ‘guardian’. Section 95(b) of Administration of Islamic Law (Federal Territories) Act, 1993 (Act 505) provides that a non-Muslim below the age of 18 may convert into Islam if his parent or guardian consents to it. However, Section 5(1) of the Guardianship of Infants Act, 1961 (Act 351), which applies to non-Muslims only, grants both mother and father same equal parental rights over their children.

Faiza held that the word ‘parent’ in Article 12(4) meant a single parent. This interpretation was also adopted by the Federal Court in the 2008 case of Subashini v Saravanan. For that reason, Jeyaganesh had the right to unilaterally convert the two minors without Shamala’s consent. Shamala, of course, is not able to reconvert the minors to Hinduism due to strict Muslim apostasy laws.

Imagine if the couple were non-Muslims, absurdity would ensue when the poor children converted back and forth into the religion of either the father or mother every single day if the interpretation of ‘single parent’ is correct!

In Chang Ah Mee v Majlis Ugama Islam Sabah & Ors, 2003, the High Court of Kota Kinabalu interpreted the word ‘parent’ in Article 12(4) to mean both father and mother. Justice Ian Chin held that to allow just the father or mother to choose the religion would invariably mean depriving the other of the constitutional right under Article 12(4).

Further, it is respectfully submitted that if Interpretation Acts 1948 and 1967, which generally apply to all Acts of Parliament, state that words in the singular shall include the plural, then the Constitution ought to have been interpreted in the like manner. Otherwise, one can also literally argue that Article 12(4) does not apply to a female child as the words “his parent” would mean only a male child!

Secondly, the constitutional imbroglio caused by Article 121(1A) arose after Parliament amended Article 121(1) of the Constitution on June 10, 1988. Prior to the amendment, Article 121(1) expressly stated that the ‘judicial power’ of the Federation shall be vested in the High Court.

The Constitution Amendment Act, 1988 (Act A704) then removed the words ‘judicial power’ and inserted a new clause (1A) to Article 121 to state that the High Court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. With the removal of the words ‘judicial power’, civil courts took upon themselves to concede that they no longer have any ‘judicial power’ or jurisdiction over Syariah courts whenever any issue related to Islam should arise.

In tabling Act A704 to amend Article 121, the then Mahathir administration was concerned about civil courts interfering, reviewing and re-adjudicating orders made by Syariah courts particularly on Islamic family law matters.

This is interesting, considering that as late as early 1980s, State Islamic enactments like the Selangor Administration of Muslim Law Enactment, 1952 (now repealed) still had a provision like Section 45(6) stating that nothing in the Enactment shall affect the jurisdiction of any civil court! (See Myriam v Mohamed Ariff, 1971) A fortiori, the Supreme Court has already declared in Che Omar bin Che Soh v Public Prosecutor & Anor Case, 1988 that Malaysia is a secular state; otherwise there would be provision in the Constitution to state that any law which is contrary to the injunction of Islam will be void.

Be that as it may, little did Parliament know then that by the stroke of a pen, the amendment has now caused untold misery to couples like Shamala and Jeyaganesh because the amendment did not provide for a solution in the event of a conflicting and overlapping jurisdiction of civil and syariah courts such as between Act 351 and Act 505 which should have been foreseeable because it is ineluctable.

The problem is compounded when the non-Muslim spouse is only allowed to petition for divorce three months after the other spouse’s conversion. It follows during this three-month period, the converted spouse can wreak havoc by seeking divorce and custody of children in the Syariah court simply because he is not allowed to petition for divorce in the civil court under section 51 of Act 164.

It is regrettable that civil courts have not strictly adhered to the 1994 decision of the Supreme Court in Tang Sung Mooi v Too Miew Kim which trenchantly pronounced that Parliament, in enacting section 51 of Act 164 must have had in mind to give protection to non-Muslim spouses and children of the marriage against a Muslim convert because 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.

To the non-Muslims, by not even confronting, let alone resolving, these issues, the civil court judges have abdicated their duty to uphold their constitutional rights to equality and freedom of religion. This would only lead to some of them harbouring a wrong perception that it is due to the religious and racial composition of our judiciary.

It is for this reason that Malaysians saluted the Cabinet for their gumption in making the decision in April last year 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 opted to convert.

The Cabinet also stressed that conversion must not be used as a ground to automatically dissolve a marriage or to get custody of children, and a marriage solemnised under civil law could only be dissolved in the civil court.

It is now incumbent upon both Barisan Nasional and Pakatan Rakyat legislators to make the necessary changes to the relevant Acts of Parliament and State Islamic Enactments, including convincing the Conference of Rulers and State Rulers on the importance of resolving this longstanding and highly emotive issue which is detrimental to national unity.

It is hoped that the Cabinet’s progressive and egalitarian approach will translate into law as soon as possible in order to overcome this constitutional impasse. Until then, can one really blame another person like Shamala for following what she did?

*The above article was first published in The Sunday Star on 21 November 2010.

1 comment:

  1. While our civil court judges can opt to abdicate their duty to uphold the people’s constitutional rights to equality and freedom of religion, our poor Rakyat has no way to unlock their miserable situation. If our MPs and Cabinet are really "walk their talk", this is the time for them to do something.