Hornbill Unleashed

April 17, 2014

When Civil Court and Syariah Court collides

Filed under: Human rights,Politics — Hornbill Unleashed @ 8:00 AM
Tags: , , ,

68ce2-courtJimmy Puah

It is a cardinal rule of law, that all laws enacted should be clear and unambiguous in terms. The reasoning for this is that everyone should know their legal rights and when not to step out of the legal boundary.

It is for this reason that especially in criminal law, great effort is made to scrutinise every wording of an Act.

The recent custodial dispute involving S. Deepa and Izwan Abdullah has brought this issue to the forefront.

The significance of this case not only highlights the need for certainty in law but it also examines the legal quandary involving rights of Muslims and non-Muslims when their legal rights cross path.

Let us recap the background of the case. The father, Izwan Abdullah converted into Islam and then converts with his two children too, last year, without informing S. Deepa, the mother.

It must be noted here that Article 12(4) Federal Constitution and Section 5 of the Guardianship Infant Act 1961 recognises the equal rights of both parents under the law, hence unilateral religious conversion without the consent of the other legal parent could be contested in court.

Subsequently, he obtained a custody order for the children from the Syariah court on August 26, 2013.

The children, however, continued to stay with the mother and on April 7, 2014, the High Court awarded full custodial rights of the children to Deepa.

Regrettably, two days after the court’s decision, the father Izwan Abdullah took the law into his own hand and snatches the eldest son from the mother at her house.

To add to the confusion of two seemingly valid orders, the IGP refuses to commence investigation and take any action against Izwan for snatching the chid because he feels that Izwan too had obtained a valid custodial right order.

Under Article 121 (1A) of the Federal Constitution, both the Civil and Syariah courts have equal but separate powers which from the first sight, seems to suggest both Syariah court and Civil court’s order though clearly conflicting are both valid.

I posit this cannot be an acceptable legal position. In this dispute, clearly the High Court order must take effect over the Syariah Court order because:

(1) the marriage was registered under Civil Law, namely Law Reform (Marriage and Divorce) Act 1976 and it is only reasonable to conclude any divorce or children arrangement order must be made pursuant to this act.

(2) It’s a fundamental rule of natural justice that all parties must be accorded a right of fair hearing or defence. Even a hardcore drug dealer is given a right to defend his case in the court and also be given automatic appeal until all his legal avenue is exhausted.

In this dispute, Izwan obtained the custody order from the Syariah Court and being a non-Muslim, Deepa was not allowed to appear before the Syariah court and argue her case.

Conversely, in the civil court, both Deepa and Izwan are represented by their respective lawyers and the High Court judge had listened to both parties’ submission before coming to a decision.

Hence, it is only fair that the civil court order should prevail because it is conducted in a fairer manner to both sides.

Izwan’s lawyer should be well aware of this because Izwan never challenged the jurisdiction legality of the civil court to hear the custody case even though he is a converted Muslim.

So by submitting to the civil court jurisdiction, it is too late for him after he lost, to argue for the validity of the Syariah Court order.

By taking laws into his own hand, Izwan is openly defying the authorities. The right thing for him to do is to file an appeal if he is not satisfied with the High Court decision.

The police by not taking action against Izwan is condoning a criminal act of kidnapping and this only infuriates many law abiding citizens. This also sets out a very dangerous precedence for future custody fights in future involving Muslim and non-Muslim parents.

In summary, the continued existence of two parallel courts in our justice system is a cause for concern. All is fine if the Syariah Court only regulate civil matter within its own community such as estate matters but what if the subject matter in dispute is criminal in nature or involves non-Muslims’ rights?

The Deepa-Izwan dispute has highlighted all the problems I feared but can the government provides an affirmative answer?

The government cannot run away from its own creation and must address this crucial issue now, for I fear, if not, the rights of non-Muslims in this country will be severely tested and continue to erode.

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