| Press Release | The Exclusive Jurisdiction of the Civil Courts on Constitutional Issues and Statutory Rights Must be Preserved, Upheld and Exercised Wisely |
| Tuesday, 23 February 2016 08:53am | |||||
 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 8 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.
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.
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 resolved. 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 Dato’ Seri 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 Hajah Nancy Haji 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]
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
President
Malaysian Bar
22 February 2016
[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.
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