Tuesday, June 18, 2013

Civil courts must rule on children’s conversion

Civil courts must rule on children’s conversion

June 18, 2013-FMT
The writer says that the husband who converted to Islam and the Syriah Court have no power to take over the duties of the civil courts.

COMMENT
By Jose Mario Dolor De Vega
I refer to the recent debate on whether the civil courts should decide on children’s conversion.
I overwhelmingly concur with the contention lucidly taken by the former president of MCCBCHST and Malaysia Hindu Sangam, A Vaithilingam that the civil court must decide squarely the question and issue of children’s conversion.

I join him in his shock and disgust at the statement by Johani Hassan, the Director of Islamic Affairs Negeri Sembilan, when the latter categorically stated that “any one of the parents is enough to convert a child to Islam.”

That is truly shocking indeed, and undeniably detestable and utterly disgusting.
The statement is so shocking by virtue of the fact that the pertinent “law states that the conversion has to have the approval of the parent”.

Hence, how could a father or a mother or a single parent decide or approve the conversion of his or her child, without the consent and approval of the other parent or spouse?

There is no iota of doubt that in the English language (wherein the law is written) it refers irrefutably both to the father and mother. Both logic and common sense will tell a reasonable individual reading the law that a parent pertains, means and refers to both Mama and Papa.

Hence, the grossly disputable words issued by the Director of Islamic Affairs of Negeri Sembilan; in truth and in fact are undoubtedly meaningless! It has no basis in fact and no grounding in law.

Under the legal subject of statutory construction and following the legal doctrine of verba legis:

It is a well-settled rule, recognised and sanctioned by universal legal convention, that where the language of the law is clear and unequivocal, it must be given its literal application and applied without interpretation. It is also known as the “plain meaning rule”.

The plain meaning rule

This legal rule provides that: “if the statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without interpretation.

This rule rests on the valid presumption that the words employed by the legislature in a statute correctly express its intention or will and preclude the court from construing it differently.

The legislature is presumed to know the meaning of the words, to have used words advisedly, and to have expressed its intent by use of such words as are found in the statute.”

It is beyond dispute that the law used or employed the term or the word, “parent”. Therefore, no one except the Legislature has the right to amend or modify or interpret or worst, change the language of the law!
Further, no one outside the scope of the civil law has the right to appropriate or use to their purpose the meaning of the law, by virtue of the undeniable fact that the law under consideration is civil in nature and not religious or otherwise.

It is on this sense that the pronouncement of Hassan is detestable and disgusting. He has no jurisdiction to meddle on an issue that is purely civil in nature.

Another matter that irritates me with regard to this case is Hassan’s “advise” to the mother of the child, who happens to be a Hindu “to go to the Syariah Court to settle the matter.”

Vaithilingan is correct when he retorted that: “He must understand that the Syariah Court is only for Muslims.”

Further, I also agree completely with Vaithilingam’s legal thesis that:

“The marriage was through civil registration and the husband or the Syariah Court has no powers to take over the duties of the civil courts.”

I subscribed to the legal view that indeed, the husband who converted and the Syriah Court have no power to take over the duties of the civil courts.

To allow that aberrant situation will lead to an illegal usurpation of judicial function. The grim effect of this scenario, if ever, will be the collapse of the whole administration of justice in the country!

Civil court must decide
Let me also state for purposes of the records that the husband and the Syriah Court have no jurisdiction to assume and/or to intervene on this case by virtue of the fact that legal basis of the marital union is by civil registration.

Hence, there is no shadow of doubt that it is a purely stately matter and not a religious one.
I respect the choice of the husband to become a Muslim, that is perfectly within his right but nonetheless “in my opinion, it gives him no right on the spouse or their offspring unless decided by the civil court. The oath he has taken in marriage is still binding until the court decides otherwise.”

Indeed, “this is a long-standing issue that we must solve once and for all” in order for us to settle finally the jurisdiction and boundary of the civil court from that of the Syriah court!

Lastly, this case must be decided by the civil court to declare to the public what the law is and finally to render justice to all those who cries for it!

Jose Mario Dolor De Vega is a philosophy lecturer at the Polytechnic University of the Philippines.

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