The Court of Appeal’s decision to refer the case involving the custody and conversion of the sons of S. Shamala and Muhamad Ridzwan (Dr Jeyaganesh C. Mogarajah) to the Federal Court last Tuesday has given rise to some interesting issues.
Chiefly, it is going to be one of the biggest tests for the government as well as its judiciary system after the Cabinet made a courageous decision that children of divorced parents should be raised in the religion of the time of their marriage should one of them were to later convert to another religion.
The Cabinet’s landmark decision two weeks ago is thus set to be tested by the highest court of the land if the current laws and enactments are not amended to provide clear interpretation on matters related to such conversion cases, according to those in the legal circles.
The Cabinet’s decision is seen by many as a move to alleviate the frustration of certain parents when their children had been converted to another religion without their knowledge, consent or against their will.
The move is in in line with the spirit of 1Malaysia, a concept espoused by Prime Minister Datuk Seri Mohd Najib Tun Razak who has called on Malaysians to refrain from viewing matters from narrow ethnic perspectives or from their “ethnic silos” as he had once described.
Malaysia has a dual-track legal system, with civil courts and syariah courts operating side by side.
The Court of Appeal has decided to refer five constitutional questions to the apex court before hearing the appeals as it wants the Federal Court to adjudicate on conflicting Islamic and civil laws governing conversion and the freedom of the practice of religion.
For example, there will be this question of whether the Administration of Islamic Law (Federal Territories) Act 1993, which gave the right to a converted parent to convert his or her children from a civil marriage without the knowledge and consent of the other parent, is inconsistent with the Guardianship of Infants Act 1961. This is because the amended Guardianship of Infants Act gives equal rights to a mother and father on the upbringing and custody of their children.
Then there will also be the issue of whether the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) is in conflict with the Federal Constitution and a federal law relating to the issue of converting a minor by a parent.
The Federal Court also has to decide whether there is jurisdiction for the High Court or Syariah Court to make conflicting orders and if there had been a conversion of the children from a civil marriage into Islam by one parent without the consent of the other parent, where then would the non-Muslim parent seek remedy.
In the Shamala-Muhamad Ridzwan case, both relied on both sets of laws, with Muhamad on syariah law and Shamala on the Law Reform (Marriage and Divorce) Act 1976.
Under the two different systems of law, both were granted custody over the two boys who were born during their 11 years of marriage, and seven years later, they still do not have closure on the case.
The same also happened in the case of Indira Ghandi and K.Patmanathan (Mohd Ridzuan Abdullah), where the syariah court had earlier granted interim custody of the children to Mohd Ridzuan and two weeks later, the Ipoh High Court granted interim custody to Indira.
In layman’s terms, it is a matter of concern if the Federal Court has to make an interpretation of whether the civil court has jurisdiction over the syariah court if the marriage was first registered under civil law.
However, some quarters are concerned that without any amendment to the existing and related laws, the Cabinet’s decision may not be helpful to those who seek remedies or solutions to their plight.
As pointed out by Bar Council president Ragunath Kesavan, the Cabinet directive was a policy statement that required amendments to existing laws for their full realisation.
“The relevant legislation must be immediately amended in order to fully implement this directive without further delay,” he said.
For Senator Datuk Gooi Hoe Hin, he said in the spirit of 1Malaysia, the government of the day should go on a fast track mode to amend various laws to avoid further apprehension that the fundamental rights of non-Muslims enshrined in the federal constitution were not violated.
The laws that need to be amended involve Article 12(4) and Article 121 (1A) of the Federal Constitution, Guardianship of Infants Act, 1961 (revised 1988) and The Law Reform (Marriage and Divorce) Act 1976.
Such amendments are to ensure that the basic principles of a socially just system were further enhanced, thereby enabling the people to greater confidence in the government, Gooi said.
However, some still argue that asking the government to make the related changes as soon as possible is easy but the reality is that it will take some time to effect them.
This is especially so on such crucial and important matters related to amendments in Islamic law which needed the consent of the Malay rulers and Islamic bodies.
A number of Muslim organisations have been reported to be against the Cabinet directive and this has posed a question mark on whether such amendments could be carried out.
Perak Mufti Datuk Seri Harussani Zakaria pointed out that the government needed to get views from the Malaysian Mufti Council as he stressed that “in Islam when the father or mother is a Muslim, the child automatically becomes a Muslim unless the child is above 15 years of age and can choose his own religion.”
For many Malaysian syariah lawyers, they felt that the Cabinet decision had denied the rights of people who converted to Islam.
Senior lawyer Roger Tan said the Federal Court can decide either way or it might not make any decision on the matter and would ask the legislature to clear out the conflicting or overlapping jurisdiction.
“The Federal court can decide and work both ways. It can depart from normal decisions. Nobody knows for sure,” he said.
Whatever it is, the government will need the support of the majority in Parliament to make the necessary changes for the benefit of all in the courageous spirit of 1Malaysia.