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Reconciling
conflicting interests |
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Wednesday, 09 January 2008 08:05am |
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One of the primary tasks of
law is to recognise and peacefully reconcile conflicting interests in
society. BY FAR and large Malaysia¡¯s
plural legal system has, with admirable success, walked the middle path between
private weal and public interest, and between the competing demands of
various ethnic, religious, linguistic and regional associations that
constitute the majestic network of our society. But in the last decade and a
half, a number of deeply divisive and unresolved issues have come to the
fore, among them the issue of religious conversion of children and the
conflicting jurisdiction between the syariah and civil courts. In the recent case of Subashini
v Saravan these issues again came to the fore. The husband in a
non-Muslim marriage renounced his religion to become a Muslim. He converted
his four-year old boy to Islam without the knowledge and consent of his
spouse. He sought the Syariah Court¡¯s
help to dissolve his non-Muslim marriage and to obtain custody and/or
guardianship over his infant children. The non-converting spouse
unsuccessfully sought the High Court¡¯s and Court of Appeal¡¯s help to dissolve
her marriage, to restrain the conversion of her two-year old child and to get
both children back to her care. On Dec 27 last year, in a
landmark judgment the Federal Court ruled on the issue of child conversion
and on the engaging issue of which court has jurisdiction in a matrimonial
dispute involving a couple one of whom has converted to Islam. The apex
court¡¯s majority 2-1 judgment contains much that will give solace to
non-Muslims but there are also rulings that will cause despair. Jurisdiction The majority ruled that
questions of jurisdiction are for the civil courts to determine. The High Court
has jurisdiction even if the husband has converted to Islam and even if he
had commenced proceedings in the Syariah Courts: Tan Sung Mooi v Too Miew
Kim (1994). The status of the parties at
the time of the non-Muslim marriage is the material consideration for purpose
of jurisdiction. A Syariah Court order
relating to a civil marriage has no legal effect in the High Court other than
as evidence of Islamic law. The converting husband whose civil marriage is
still subsisting is subject to the jurisdiction to the High Court, but the
Syariah Court has no authority over the Hindu wife. Non-Muslim marriage A non-Muslim marriage does
not automatically dissolve upon one party¡¯s conversion to Islam. It remains
valid till dissolved by the High Court under civil law. Provisions of Islamic
Law apply only to those marriages where both parties are Muslims. A
converting spouse cannot shield himself behind freedom of religion in Article
11(1) to avoid prior obligations under the 1976 civil law. By contracting a
civil marriage the couple is bound by the 1976 Act in respect of divorce and
custody. Despite the above
exhilarating opinions, the Federal Court majority failed to resolve
decisively the issue of jurisdiction. Datuk Nik Hashim Nik Ab. Rahman, FCJ
for the majority held that both civil and syariah courts have concurrent
jurisdiction over the matter. Sadly, this paves the way for
conflicting custody and guardianship orders from the civil and syariah
courts, possible complaints of contempt of court for non-obedience of
judicial commands, and continuing gladiatorial battles in the courts. The dissenting judge Datuk
Abdul Aziz Mohamad must have foreseen all this. He ruled wisely that as the
marriage at its inception was a non-Muslim marriage, the High Court has exclusive
jurisdiction. The majority also ruled that
it is not an abuse of the process of the courts for a spouse in a ¡°Law Reform
marriage¡± to move the Syariah Court. The majority gave to the husband the
unilateral right to convert the religion of his minor child to Islam and
refused an injunction against him. The dissenting judge, with courage and
compassion, broke ranks with the majority on all these issues. The judgment also revealed a
disturbing unequal legal position in the matter of one¡¯s right to go to the
courts to seek redress. The non-converting spouse could only move the High
Court for divorce only after three months of her husband¡¯s conversion. But the converting husband
could get going in the Syariah Court right away and have a head-start in matters
of obtaining judgments over issues of custody, guardianship, property and
maintenance. This state of affairs is hardly going to arouse confidence in
non-Muslim minds. It is for this reason, perhaps, that the learned dissenting
judge asked for the status quo to be preserved till the civil court
determined the issues authoritatively. Conversion of a child Article 12(4) of the
Constitution provides that for the purpose of instruction in or taking part
in a ceremony or act of worship, ¡°the religion of a person under the age of
18 years shall be decided by his parent or guardian¡±. All three judges ruled that
the word ¡®parent¡¯ in Article 12(4) of the Constitution is in the singular and
refers to one parent only. A converted partner could
unilaterally and without the consent of the other spouse change the religion
of his children to Islam. The other parent cannot prevent the conversion: Nedunchelian
v Norshafiqah (2005). However, one judge, Datuk Abdul Aziz Mohamad, FCJ
ruled that the non-converting spouse is entitled to a hearing and to object
to the conversion. With all due respect to the
apex court, its decision on this point is flawed in law. The term 'parent' in
Article 12(4) is indeed in the singular but it is clarified in the Eleventh
Schedule in section 2(95) that ¡°words in the singular include the plural?¡±
The Constitution intended to
give both parents equal rights to determine their children¡¯s religion. The
learned judges overlooked or were not alerted to this provision in the
Eleventh Schedule. From the point of view of
justice and constitutionalism what was required was a ruling on two points.
First, that both parents have equal rights. Second, a creative interpretation
was needed to cover situations when the parents do not see eye to eye on
their child¡¯s religion. As the glittering
generalities of the Constitution fail to provide any guide, it is submitted
that in such a situation, as a matter of practicality, the parent to whom
custody is granted by the court of competent jurisdiction should have the
right to choose a child¡¯s religion till he reaches the age of 18. The open-ended court ruling
in the Subashini case could result in continuing court battles if each parent
uses his right to convert and re-convert a bewildered child. The Subashini decision,
therefore, leaves much to be desired. A legislative initiative is needed to
restore the spirit of tolerance, compassion and moderation that animated our
Merdeka Constitution. The judiciary, with
honourable exceptions, fails to arouse confidence. The Government and
Parliament must step in to restore the balance of things and to chisel out
the necessary solutions and compromises. Dr Shad Saleem Faruqi is
Professor of Law at UiTM. |
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