Bar: Constitutional issues, statutory rights must be upheld, exercised wisely

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Photograph: themalaymailonline.com

The sole and absolute preserve of the civil courts to determine constitutional issues and matrimonial matters in relation to civil marriages under the LRA, must be jealously guardedSteven Thiru.

The Malaysian Bar refers to the case of Viran s/o Nagapan (ex-husband) v Deepa d/o Subramaniam (ex-wife), which reiterates the settled principle that the civil courts have exclusive jurisdiction over civil marriages contracted under the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) [1].

The Federal Court correctly decided that the civil courts shall continue to have jurisdiction in respect of divorce and custody of children, notwithstanding the conversion of one party to Islam [2].

This decision of the Federal Court, in yet another case of so-called “conflict of jurisdiction” between the civil courts and the Syariah courts, is a pertinent reminder that a converted spouse (the ex-husband, in this instance) cannot use his conversion to Islam to escape his responsibilities under the LRA [3].

In the result, the Syariah court’s order in this case – dissolving the civil marriage and granting custody of the children to the ex-husband – cannot prevail. The Federal Court pointedly observed that “[i]t is an abuse of process for the spouse who has converted to Islam to file for dissolution of the marriage and for custody of the children in the Syariah Courts” [4].

Thus, the dissolution of the civil marriage by the High Court was upheld. However, the Malaysian Bar is disappointed with the decision of the Federal Court to vary the custody order of the Seremban High Court — which was affirmed by the Court of Appeal — granting custody of both children to the ex-wife. The Federal Court should not have ordered that the ex-husband be given custody of the son (now eight years old), with the ex-wife to have custody of only the daughter (now 11 years old).

It should not be forgotten that the ex-husband blatantly defied the custody order of the High Court (as well as the Court’s specific order prohibiting him from removing the children from the ex-wife or her parents’ home or from the children’s school), when he abducted the son (then five years old) just two days after these orders were made.

The ex-wife was compelled to obtain a recovery order directed at the Inspector General of Police (IGP) and his officers to regain custody of her son from the ex-husband. They did not comply with the recovery order, on the basis that there were at the time conflicting custody orders by the Syariah Court and High Court.

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The Federal Court has now erroneously exonerated the IGP and his officers for not complying with the High Court’s recovery order, by holding that the Syariah Court custody order is valid until it is set aside.

The Syariah Court is created by statute, and its jurisdiction is limited by the statute. Where the Syariah Court makes orders that are beyond its statutory jurisdiction — such as to dissolve a civil marriage and to grant ancillary relief to the converted spouse — these orders are inherently void and therefore without legal effect.

The IGP and his officers should not have relied on the flawed Syariah Court custody order, and they condoned the breach of the High Court’s custody order in refusing to enforce the High Court’s recovery order.

Further, this exoneration by the Federal Court may be inferred as tacit approval of the conduct of the ex-husband in abducting the son, which the Seremban High Court described as “an act of contempt of the grossest kind” [5].

The ex-husband appears to have been emboldened by the exculpation of the IGP and his officers. He has yet to be held accountable for his wrongdoing. It was recently reported that he has threatened to kidnap the daughter, notwithstanding the Federal Court’s order granting custody of the daughter to the ex-wife [6].

His belligerence and insolence warrant condemnation, and his refusal to obey court orders must not be condoned.

It would seem that the Federal Court also ignored the ex-husband’s history of domestic violence. The ex-wife had reportedly lodged more than 25 police reports relating to domestic violence during their marriage, and obtained an interim protection order to protect her from further abuse in August 2013 [7].

In this regard, in granting the recovery order, the High Court found that the ex-husband “…has no respect for the law. Certainly he is not a person who should be entrusted to have custody of the children” [8].

In addition, the ex-husband had a criminal conviction, and the High Court noted that he “… had no scruples being involved in criminal activities for the sake of money. What kind of example would that be to a young child” [9]. These findings were undisturbed by the Court of Appeal.

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The Malaysian Bar is also very concerned with the apparent last-minute decision by the Federal Court to interview the children in court, before the custody order was varied. This was improper, and undoubtedly an intimidating and scarring experience for the children.

In jurisdictions such as England, Singapore and Australia, judges do not routinely interview children to ask them which parent they wish to live with. Instead, a welfare report on the children is done well before the court decides on custody.

Such a report is prepared by experts in child psychology or welfare, who would spend considerable time with the children to assess the best interests of the children. These experts would then be in a position to advise the court in arriving at its decision in respect of the custody of the children.

The unilateral conversion of both children to Islam by the ex-husband was not a question framed for the determination of the Federal Court in this case. It is nevertheless an issue that must be resolv ed.

The unilateral conversion occurred when the daughter was eight years old and the son was five years old.As the High Court aptly questioned, “… at such tender age, is it reasonable to expect them to be able to consider and make rational decision regarding the choice of converting to another religion other than the one that they are born with.”

The Malaysian Bar maintains that the Cabinet directive announced in April 2009 through the former de facto Law Minister Mohamed Nazri Abdul Aziz — that the children of an estranged couple should remain in the religion of the parents at the point of their marriage — is just and fair, and is constitutionally correct.

Further, the Malaysian Bar agrees with the views expressed by the current de facto Law Minister Nancy Shukri that the welfare of children is paramount, that young children, especially, need their mother, and that the children should be allowed to choose their religion when they reach the age of majority [10].

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There is a proposal for a tribunal, comprising Syariah and civil court judges, to resolve disputes of this nature. The proposal is unacceptable and counter-productive. The intended “tribunal” has no constitutional basis. It would further have the effect of elevating the Syariah courts to the level of the civil courts, which is contrary to our constitutional scheme.

It would also subject non-Muslims to adjudication by Syariah court judges, which is plainly unconstitutional. Critically, it would lead to an intrusion into the clearly defined jurisdiction of the civil courts under the Federal Constitution and statute law.

The sole and absolute preserve of the civil courts to determine constitutional issues and matrimonial matters in relation to civil marriages under the LRA, must be jealously guarded and never compromised. The civil courts must always exercise this important jurisdiction wisely.

Steven Thiru is president of the Malaysian Bar.

References:

[1] See the Federal Court in Subashini a/p Rajasingam v Saravanan a/l Thangatoray [2007] 3 MLRA 81 and the Supreme Court in Tang Sung Mooi v Too Miew Kim [1994] 3 MLJ 117.

[2] See paragraphs 22 and 25 of the judgment of the Federal Court in Viran a/l Nagapan and Deepa a/p Subramaniam.

[3] See Teh Siew Choo v Teo Eng Hua [1999] 6 CLJ 308, Kung Lim Siew Wan v Choong Chee Kuan [2003] 6 MLJ 260, and Shamala a/p Sathiyaseelan v Dr Jeyaganesh a/l Mogarajah [2004] 2 MLJ 241.

[4] See paragraph 32 of the judgment of the Federal Court.

[5] See paragraph 51 of the judgment of the High Court in Deepa Subramaniam v Viran Nagapan [2014] 5 MLRHU 1, at page 14.

[6] “​Izwan tells his side of story, warns ex-wife if daughter raised as Hindu”, The Malaysian Insider, 17 February 2016.

[7] Press statement by Women’s Aid Organisation entitled “​Yet another delay for S. Deepa to be reunited with her son”, 14 January 2015.

[8] See paragraph 51 of the judgment of the High Court in Deepa Subramaniam v Viran Nagapan [2014] 5 MLRHU 1, at page 14.

[9] See paragraphs 103 to 105 of the judgment of the High Court in Deepa Subramaniam v Viran Nagapan [2014] 5 MLRH 107, at pages 126 and 127.

[10] “​​Nancy: Let children choose religion at 18”, The Star Online, 15 February 2016.

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