Hakam welcomes the Federal Court judgment handed down yesterday in the Indira Gandhi case which has finally provided clarity in relation to issues that have plagued the nation for years.
The well articulated and courageous, unanimous judgment of the Federal Court delivered by YA Tan Sri Datuk Zainun Ali FCJ has resolved the vexed issues surrounding numerous cases of unilateral conversion where the non-converting spouse has been left without remedy in the civil courts. This was a situation that screamed for a solution either in Parliament or in the courts. Yet both abdicated, until now.
The Federal Court has now determined that Article 121(1A) cannot prevent the civil courts from exercising its jurisdiction in determining matters under federal law, notwithstanding the conversion of a party to Islam.
It further held that the powers of judicial review of the civil courts are key in performing their constitutional role in supervising the administrative actions of all statutory bodies. Hence the civil courts have the jurisdiction to examine the validity of the certificates of conversion in relation to Indira Gandhi’s children.
Upon examining the process, the Federal Court found it flawed and set aside the certificates of conversion.
The Federal Court also settled the crucial question of whether such a conversion requires the consent of both parents ie whether the unilateral conversion of the religion of a child is permissible under the Federal Constitution. The court held that the consent of both parents is required.
The judgment upholds the rule of law and protects the basic structure of the Federal Constitution. It gives meaning to the protection afforded to all Malaysians under the Federal Constitution.
It also puts the well recognised principle that the welfare of the child is paramount, at the forefront of the decision-making process in such cases. Unfortunately for years, the welfare of the children has been relegated to the back seat.
The practical effect of the decision is that it brings to a close the unnecessary suffering of so many children and spouses whose families have been torn apart by the actions of one spouse to the marriage. No longer can one spouse use religion as a means of punishing the other.
The outcome is a just result, both for the spouses and most of all for the children. In family law cases, it is the duty of the court to ensure the least anxiety to the affected children and spouses. This Federal Court judgment has succeeded in restoring good sense and balance into the determining of such disputes.
Ambiga Sreenevasan is president of the Human Rights Society of Malaysia (Hakam). This statement was issued on behalf of the Hakam executive committee.