KUALA LUMPUR, Feb 11 — The Federal Constitution needs to be amended to avoid more Malaysians from suffering the fate of Hindu mothers M. Indira Gandhi and S. Deepa — who were both forced into long legal battles for custody of their children, DAP MP Teresa Kok said today.
Despite the Federal Court’s ruling yesterday in Deepa’s case that only the civil courts have the power to decide on custody of children born in a civil marriage, Kok voiced concern that the Shariah court may still choose to give court orders in such cases.
“It appears that notwithstanding the latest Federal Court decision in Deepa, there is no guarantee that another Shariah Court will not do the same as the earlier Shariah court did in Deepa and in others,” the Seputeh MP said in a statement today.
Deepa had previously won custody of her two children in the civil High Court, but the police did not act on the civil court’s order to return the son Mithran snatched away by her Muslim convert ex-husband Izwan Abdullah, due to a custody order in his favour by the Shariah courts.
Kok blamed the government’s alleged “hasty and impetuous” amendment of Article 121 of the Federal Constitution as being the main cause for several anomalous cases such as Indira’s and Deepa’s.
Kok claimed that this amended constitutional provision effectively means the Shariah courts “remain at liberty to rule in any manner they deem fit”.
“This amended Article 121 (1A) clearly does not bind the Shariah Courts of the decision of the Civil Courts notwithstanding that the Fed Court is the highest civil court of the land. Even the Federal Attorney General has no control over the Shariah courts.
“Hence, until suitable amendments are made by the government, the provisions in the Constitution will stand as it is — wherein the Shariah Court are a fully independent entity on their own and I foresee similar recurrences of more Indiras and Deepas,” the DAP vice-chairman said.
Yesterday, Deepa pleaded for the country’s laws to be changed to spare other single mothers from her traumatic experience of being separated from her son, urging the authorities to ensure her case will be “the last case in Malaysia”.
Today, Kok said the Federal Court’s ruling yesterday was only comforting in terms of its affirmation of the civil courts’ jurisdiction over civil marriages, but said it was disappointing as a whole as it had left many issues unresolved.
Kok pointed out that it remains unclear whether Deepa’s daughter Sharmila would be able to practise her original faith of Hinduism and whether the latter would need to go through another stressful process of renouncing her unilateral conversion to Islam by her father, as well as whether the Shariah courts or civil courts will have jurisdiction over her religious status.
The Federal Court yesterday divided the custody of Mithran and Sharmila after interviewing them, handing the son to his Muslim convert father Izwan Abdullah and the daughter to Deepa.
The court also ruled that matters involving custody or divorce in civil marriages should only be handled by the Civil Courts and not the Shariah Court, unless both husband and wife are Muslims.
The Federal Court did not say whether the civil courts or the Shariah courts would have the power to decide on the religious status of children who were unilaterally converted to Islam.
Last December 30, the Court of Appeal in a 2-1 decision reversed a lower court’s order quashing the unilateral conversion of Indira’s three children to Islam, stating that only the Shariah courts have the jurisdiction to determine whether a person is a Muslim.