Friday, June 13, 2014

The Cabinet should provide long term solution to interfaith custody battles

Press Statement by M. Kula Segaran, MP Ipoh Barat and DAP National Vice Chairman MP for Ipoh Barat in Ipoh on Friday, June 13, 2014
The Cabinet should provide long term solution to interfaith custody battles
Parents involved in custody tussles after each were given the rights to their children by the Syariah and civil courts should use the legal process to settle matters, Prime Minister Datuk Seri Najib Tun Razak said when finally breaking his silence on the custody tussles.

"They can appeal to the Federal Court. Since this matter has attracted the attention of the public, the Government believes the court will give priority to these cases,’ he said. 

This issue has attracted public attention although cases of child custody rights are actually private matters involving the families, said Najib. 

Although it is good that the Prime Minister has finally taken an interest in the custody battle issue and given his advice, his advice is disappointing and is not a quick solution to the woes by Indira Gandhi and S Deepa.

Conversion and Custody are issues which are intricate and difficult to be resolved.

But the custody battles are not ordinary per se custody issues. In both the cases, the convert fathers (converted to Islam from the original faith Hinduism) had taken the children away from the respective mothers. Further the fathers had obtained custody orders from the Syariah courts. The mothers had in the same time obtained custody orders from the civil courts.  

A major issue is the conflict of Jurisdiction of the Civil courts set up by the Federal constitution and the Syariah Courts established by the state Governments. Is it merely overlapping jurisdiction? 

Syariah court has Jurisdiction over Muslims only as spelt out the State Enactments.  Thus in short, a non muslim cannot appear before these courts and get remedies. Whereas Civil courts have jurisdiction over non muslim affairs. But even if a Hindu who has converted to Islam, but because the marriage was solemnized under the Civil Marriage Reform and Divorce Act 1976, surely the Civil court has sole Jurisdiction. See    Dato’ Kadar Shah Tun Sulaiman v. Datin Fauziah Haron [2008] 4 CLJ 504 at p. 510, Hishamudin Yunus J. (as he then was) stated:

“In my judgment, where there is an issue of competing jurisdiction between the Civil court and the Syariah court, the proceedings before the High Court of Malaya or the High Court of Sabah and Sarawak must take precedence over the Syariah courts as the High Court of Malaya and the High Court of Sabah and Sarawak are superior Civil courts, being High Courts duly constituted under the Federal Constitution. Syariah courts are mere State courts established by State law. Under the Federal Constitution, these State courts do not enjoy the same status and powers as the High Courts established under the Courts of Judicature Act 1964. 

Indeed, the High Courts have supervisory powers over Syariah Courts just as the High Courts have supervisory powers over other inferior tribunals like, for instance, the Industrial Court.” 
The Prime Minister has attempted to find an easy way out t by asking the parties to go to the courts and seek remedy. But does he seriously think he is being fair? Has he really understood the whole issue? 

Since the parties’ custody cases are already in the courts, there is no need for the Prime Minister to state the obvious. 

Why has Datuk Najib conveniently omitted the 2009 Cabinet decision banning unilateral conversion of minors and brushed aside the statement made by his former Law Minister in Parliament in 2009.

Datuk Nazri who was then Law Minster had stated that relevant laws would be amended to address this thorny issue of “children’ converted without the consent of both parents”. Even a cabinet committee was formed under Tan Sri Koh Tsu Koon to resolve the issue but the committee only issued a directive that all children of a converted parent shall be raised in the same faith prior to the parent’s conversion”.

In 2009 itself, I had questioned the ineffectiveness of the cabinet directive which was only an advisory nature. It has not legal effect. Nobody has bothered to adhere to it. If otherwise the parties would not be going through so much agony, emotional pain and stress. 

But why the relevant laws have not been amended till today? It is obvious that the Government has no political will to resolve the issue. 

Now to make a mockery, the Prime Minister is finding an easy way out by advising custody battle and stressed up families issues to be resolved by referring to the Federal courts. Can the Prime Minister please tell Indira and S Deepa who is going to foot the lawyers’ expenses? 

The whole issue can be resolved if the government amend the laws as promised and there will be a long term settlement of the issues. Going to court to get remedies is expensive and time consuming.
In the case of Indira Gandhi, her case was filed in 2009. The custody battle started in the High Court in Ipoh, went up to Court of Appeal and finally the Federal Court. Thecase is back on the High Court on committal as the father refuses to return the child Prisana Diksa to the mother. After getting the committal orders after a lengthy court battle the police are not assisting to enforce the committal orders to retrieve the child.

IGP putting his foot in his mouth

The Inspector General of Police Tan Sri Khalid Bakar has stated that he will want the children in custody battle to be placed in welfare homes. Three days ago I had asked the Home Minister to haul up the IGP to admonish him as the IGP had been plainly wrong in suggesting the children in custody cases be kept in welfare homes. Home Minister himself did not address the issues when journalist confronted him. 

It is so clear that the IGP has over stepped his duties and now taken the role of social activist. The Prime Minister should call up the IGP and tell him to give effect to the law by enforcing the committal orders. He should direct the IGP to carry out for what he has been appointed and paid for by the tax payers.

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