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

Why let a child suffer sins of adults?

"I didn't marry you because you were perfect.
I didn't even marry you because I loved you.
I married you because you gave me a promise.
That promise made up for your faults.
And the promise I gave you made up for mine.
Two imperfect people got married and it was the promise that made the marriage.
And when our children were growing up, it wasn't a house that protected them; and it wasn't our love that protected them - it was that promise."
Thornton Niven Wilder (1897-1975)
American playwright and novelist

INDEED, the institution of marriage is the preservation and fulfilment of that promise. Sadly, once that promise is breached and the marriage is dissolved, more often than not, the children will become the pawns and casualties of the breakdown.

Therefore, every state will have laws to deal with marriage and divorce. Here, we have the Law Reform (Marriage and Divorce) Act 1976, which is also numbered as Act 164 in our statute books ("the act"). To the superstitious Cantonese-speaking readers, it is hardly auspicious to number the act "164" as it means "to die all the way!"

The act applies to all non-Muslims in this country except any native of Sabah or Sarawak and aborigine of Peninsular Malaysia whose marriage and divorce is governed by native customary law or aboriginal custom unless he elects to marry under the act or he has contracted his marriage under the Christian Marriage Ordinance of Sabah or the Church and Civil Marriage Ordinance of Sarawak.

Currently, pursuant to Section 95 of the act, a non-Muslim parent's obligation to provide for a child financially expires when the child attains the age of 18, or where the child is under physical or mental disability, on the ceasing of such disability, whichever is the later.

In 2004, the Federal Court ruled in Karunairajah Rasiah v Punithambigai Poniah that the word "disability" in section 95 only covers "physical" and "mental" disability and does not cover financial dependence.

Federal Court judges Datuk (now Tun) Abdul Hamid Mohamad, Datuk Mohd Noor Ahmad and Datuk Pajan Singh Gill held that there was no legal basis to interpret the exceptions to Section 95 to include voluntary financial dependence for the purpose of pursuing tertiary and/or vocational education after the child had attained the age of 18.

The Federal Court, therefore, overruled the Court of Appeal which had attempted in that case, and in an earlier case of Ching Seng Woah v Lim Shook Lin 1997, to use creative interpretation to equate financial dependence to "disability".

In Ching Seng Woah, the Court of Appeal held that a child's inability to fend for himself on the job market without completing tertiary education amounted to involuntary financial dependence which could constitute "physical disability" under Section 95.

In Karunairajah Rasiah, Dr Punithambigai filed a divorce petition at the High Court against Dr Karunairajah in 1994. The latter was then ordered by the High Court to pay maintenance of RM4,200 a month to his three children who were all below 18 at that time.

In May 1998, Dr Karunairajah stopped paying maintenance when one of the children turned 18. This led the mother to file an application to the High Court asking that maintenance for all three children be continued until they completed their tertiary education.

The High Court allowed the application which was later upheld by the Court of Appeal. The Court of Appeal ruled that involuntary financial dependence was not only "physical disability" but it was also tantamount to "mental disability" under section 95.

Delivering the Court of Appeal judgment, justice Datuk Abdul Kadir Sulaiman said: "We may even go a step further in saying that this involuntary financial dependence can also be taken as a mental disability under the section for the purpose of the child of the marriage pursuing his tertiary education in order to be better equipped in his future working life. It needs able body and mind to undergo a tertiary education... The pertinent question to ask is, if their marriage had not gone to the rocks, would the appellant have left his children to wander in the streets to fend for themselves upon their attaining the age of 18 years?

"Surely not. No sensible parents would have done that to their children... The future of the children's well-being would be his paramount consideration. It is our view, therefore, that it could not have been the intention of the legislator in incorporating the provisions of Section 95 into the act to make the children worse off in the event of the break-up of the marriage of their parents compared with children living together with their parents under the same roof."

However, in delivering the decision of the Federal Court, Abdul Hamid said: "A case has to be decided according to the law as it stands, irrespective of a judge's personal view on it and moral obligations can never take precedence over the law. What the law should be is a matter for the legislature."

I am saddened by this, not so much over the decision, but rather with the inaction and tardiness on the part of the authorities in not taking steps to remedy the situation since the 2004 Federal Court decision. I have also spoken up regarding this matter on several occasions but there does not appear to be any sense of urgency on the part of our legislators to redress this injustice caused to many children caught in this predicament.

Our laws must be progressive and keep up with the times. In this case, tertiary education might not appear to be a necessity in the 1970s when the act was first enacted, but times have changed and a child will now find it difficult to make it in life without having any tertiary education.

It is, therefore, a parent's responsibility to educate his children beyond 18 notwithstanding the fact that the act has defined a "child of marriage" to be a child who is below 18.

In fact, the age limit of 18 is inconsistent with other legal provisions which regard more accurately in practice the age of 21 as the age a minor is capable of assuming an adult's responsibilities even though the Age of Majority Act 1971 determines the age of majority at 18.

For example, Article 119 of the Federal Constitution provides that only a person who has attained the age of 21 is entitled to vote in a general election. Also, Section 12 of the act requires a person below 21 to seek his/her father's consent if he/she wants to marry. This shows a child below 21 is still a dependent of his parents.

Similarly, under Section 3 of the Guardianship of Infants Act 1961, for example, the guardian is responsible for the support, health and education of the child until he/she reaches 21. In this respect, Section 95 unfairly discriminates against children of divorced parents.

Further, our income tax legislation allows a taxpayer to continue to claim relief for his child beyond 18 years of age who is pursuing tertiary education. This indirectly acknowledges a parent's responsibility to maintain his children beyond the age of 18.

Interestingly, the syariah law is more advanced than the civil law in this respect. Section 79 of the Islamic Family Law (Federal Territory) Act 1984 (which has been adopted for application in other states) specifically provides that the Syariah Court may, on application by the child or any other person, extend the order for maintenance "to cover such further period beyond the child's age of 18 years old as it thinks reasonable to enable the child to pursue further or higher education or training."

In Singapore, Section 69(5) of the Women's Charter, which was amended in 1997 reads as follows:

"The court shall not make an order under subsection (2) for the benefit of a child who has attained the age of 21 years or for a period that extends beyond the day on which the child will attain that age unless the court is satisfied that the provision of the maintenance is necessary because:

(a) of a mental or physical disability of the child;

(b) the child is or will be serving full-time national service;

(c) the child is or will be or (if an order were made under subsection (2)) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or

(d) special circumstances, other than those stated in paragraphs (a), (b) and (c), exist which justify the making of the order."

All said, it is hoped that our legislature will step in as soon as possible to amend this antiquated provision in Section 95 to compel the obligation to pay maintenance for children beyond 18 if they are receiving education or training.

This makes good sense not only on humanitarian grounds, but also because it is fair and consistent with other jurisdictions. Otherwise, irresponsible parents can refuse to do so by seeking refuge behind the Federal Court's decision of Karunairajah.

It is indeed a sad thing that these children who are at the threshold of their education are denied a chance to realise their true talent and potential. This will not only cause them to sacrifice their future, but ultimately also a loss to us as a nation.

On this Fathers Day, I sincerely hope that parents of such children will reflect upon this and spare a thought for their children because children are never to be blamed when a marriage breaks down.

The children's interest must always be of paramount consideration, and it is inhuman to punish and dump them when they reach 18 all because the marriage between the adults fails to work out.

Having brought them to this world, we as parents do not only owe it to ourselves and our children but also to the creator in fulfilling our parental duties on this earth.

Instil filial piety in young ones

New Sunday Times

by Roger Tan

IT is indeed a blessing that I was able to celebrate Mothers Day with my 83-year-old mother and 89-year-old mother-in-law last Sunday.

The picture shows both the octogenarians beaming with joy as their children, grandchildren and great grandchildren went home to Yong Peng to celebrate the occasion with them.

For my mum, life was especially hard when she first came over with dad to Malaya in March 1947. Living in extreme poverty then, her pregnancies were often fraught with problems.

She suffered three miscarriages, and two boys died one week after their births. Another girl had to be given up for adoption by the Christian missionaries at the Seremban Convent High School in 1957, whose records showed had died of pneumonia three months later.

In China in 1943, her first child, a girl, was born when mum was a weak and frail 19-year-old herself. It was also in that year that our paternal grandmother died in her 40s.

Believing that the newly born girl had brought bad luck to the family, our superstitious maternal grandmother decided to let her die in the cold outside.

Despite all these tragedies, mum is no doubt a woman of great fortitude. While dad toiled as a farmer and labourer and was often away from home, my mum performed her duties as a mother looking after us at home.

My mother-in-law is also very much an indomitable character in her own right. Hailing from China in 1932, she did not stop tapping rubber trees to support the family until she was 65.

As my father-in-law (who passed away in 1980) had asthma and was unable to work, one cannot imagine how she could have brought up a family of nine girls and three boys, including a fine daughter for me to marry.

Today, she has 37 grandchildren and 14 great grandchildren. She would often testify that she derives her strength from her strong faith in God, which she no doubt does as she still reads the Bible every day.

I am sure many others have similar if not more powerful stories to tell about their mothers. Likewise, there are many mothers out there whose children were not able to celebrate the occasion with them as depicted by the powerful Chinese New Year advertisement of Petronas in February this year.

Indeed, how we treat our parents will indirectly teach our children how they treat us later. It is often said that filial piety is becoming a thing of the past.

Surely, if our children are taught the importance of filial piety when they are young, then their children will also love them in return when they grow old.

To the Chinese community, filial piety or xiao means complete obedience to one’s parents or parents-in-law, and nothing can be more important than looking after your own parents when they are old.

So, a tale is often told that once upon a time in China, there lived a very poor family. They had a young son but the man’s mother would always give a part of her share to her grandson so that the young boy would not starve. Fearing that his mother would starve instead, the man decided to bury his son alive. But when he dug a hole, lo and behold, he discovered a pot filled with gold.

Filial piety is a universal value fundamental to the family institution.

For example, my Muslim friends are often reminded of Surah Luqman (31) verse 14 in the Quran: "And We have enjoined on man to be good to his parents: In travail upon travail did his mother bear him, And in years twain was his weaning: (Hear The Command), Show gratitude to Me and to thy parents; To Me is thy final Goal."

Our Christian friends, on the other hand, are often told that it is one of the Ten Commandments to honour our father and mother so that we may live long.

Our parents cannot just wither away in loneliness or be treated like "excess baggage" when they grow old.

It follows that our young ones should be taught, trained and imbued with filial piety as early as possible. Our primary school education system must prioritise this.

In fact, the New Sunday Times reported on April 22 that Jerai Member of Parliament Datuk Paduka Badruddin Amiruldin had urged parliament to enact a law to punish errant children who abandoned their parents.

The report also quoted the president of the National Council of Senior Citizens’ Organisations Malaysia, Lum Kin Tuck, responding that the proposed law was unnecessary and, if introduced, "can be a disgrace to us".

Of course, it was not too nice either to read the New Straits Times on March 12 that one requires between RM1.4 million and RM2.8 million in order to retire comfortably.

In Singapore, the Maintenance of Parents Act 1995 allows any person who is 60 years old or above and who is unable to maintain himself to apply to the Tribunal for the Maintenance of Parents for an order that one or more of his children pay him a monthly allowance or any other periodical payment or a lump sum for his maintenance.

In India, the Maintenance and Welfare of Parents and Senior Citizens Bill 2006 was tabled to ensure that if a person responsible for the upkeep of his parents failed to take care of them, he can face up to three months’ imprisonment and a fine in addition to being disinherited from the parent’s will.

To my mind, maintaining our parents is a family responsibility and not the state’s. If the state has to come in to compel our children to maintain us like what is being done in Singapore or India, then something is very wrong with our society.

As a parent, to know that my children are maintaining me because of a court order only grieves me further to realise that this is retribution for I have failed as a parent all these years.

It is also a damning indictment of poor parenting on our part which we, as parents, must assume full responsibility.

In conclusion, let me share with you this oft-quoted inspirational lesson written by an unknown author: A frail old man went to live with his son, daughter-in-law and four-year-old grandson.

The old man’s hands trembled, his eyesight was blurred and his step faltered. The family ate together at the table.

But the elderly grandfather’s shaky hands and failing sight made eating difficult. Peas rolled off his spoon onto the floor. When he grasped the glass, milk spilled on the tablecloth.

The son and daughter-in-law became irritated with the mess.

"We must do something about grandfather," said the son. "I’ve had enough of his spilled milk, noisy eating and food on the floor."

So the husband and wife set a small table in the corner. There, grandfather ate alone while the rest of the family enjoyed dinner.

Since grandfather had broken a dish or two, his food was served in a wooden bowl. When the family glanced in grandfather’s direction, sometimes he had a tear in his eye as he sat alone. Still, the only words the couple had for him were sharp admonitions when he dropped a fork or spilled food.

The four-year-old watched it all in silence. One evening before supper, the father noticed his son playing with wood scraps on the floor.

He asked the child sweetly, "What are you making?" Just as sweetly, the boy responded, "Oh, I am making a little bowl for you and Mama to eat your food in when I grow up."

The four-year-old smiled and went back to work. The words so struck the parents that they were speechless. Then tears started to stream down their cheeks. Though no word was spoken, both knew what must be done.

That evening, the husband took grandfather’s hand and gently led him back to the family table. For the remainder of his days, he ate every meal with the family.

And for some reason, neither husband nor wife seemed to care any longer when a fork was dropped, milk spilled or the tablecloth soiled. Children are remarkably perceptive.

*The writer still grieves for his missing father: www.missingourdad.com