Reconciling conflicting interests
Wednesday, 09 January 2008 08:05am
Star (Used by permission)
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.
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.
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.