By Murugesan Sinnandavar
Parliament passed into law the Law Reform (Marriage and Divorce) (Amendment) Act 2017 early Friday at 12.50am without the crucial Section 88A(1).
It’s a sad story of broken promises and a missed opportunity.
The cabinet had long promised the inclusion of Section 88A(1) which would have provided that in the event of a parent converting to Islam, the religion of the children would remain the same unless both parents agree to the conversion of their children.
Section 88A(1) provided what seems to be the only logical, fair and common sense thing to do. However, the government didn’t have the political guts to do what they know in their heart of hearts to be fair.
In Indira Gandhi’s case, her former husband, K Pathmanathan, converted to Islam and left the house three weeks later with their youngest child. He later converted all three of their children to Islam without their knowledge and presence, and without Indira’s consent.
He went to the shariah court to obtain custody of the children.
Indira has been unsuccessful thus far in getting justice from the civil courts. The Federal Court in its earlier decision in Subashini’s case interpreted “parent” in Article 12(4) of the Federal Constitution to mean a single parent.
It means that either the husband or wife has the right to convert a child of the marriage to Islam without the consent of the other.
Article 12(4) of the Federal Constitution provides: “… the religion of a person under the age of eighteen years shall be decided by his parent or guardian.”
Thus, the proposed Section 88A(1) in the Law Reform (Marriage and Divorce) (Amendment) Bill 2016 (now Act, 2017) is to correct this injustice and conflict.
I was perplexed when I read the reported reason given by Minister in the Prime Minister’s Department Azalina Othman Said for the removal of Section 88A(1).
She was quoted as saying, “It is also in line with the principle of stare decisis (Latin for “to stand by things decided”) doctrine where there are binding court decisions on the interpretation of Clause (4) Article 12 (of the Constitution).”
With all due respect, any first-year law student will tell you that the doctrine of stare decisis is only applicable to the courts, namely, the lower courts are bound by the decisions of the higher courts.
A court decision does not and cannot prevent parliament from enacting into law provisions it deems fit, provided procedures, as laid out in the Constitution, are followed.
Parliament is there as the representative of the people. The courts can only interpret laws as passed by parliament. The doctrine of stare decisis does not bind parliament.
Often courts in their decisions have stated that their hands are bound by the words in an Act of parliament and might even suggest parliament enact amendments to correct it. It is bizarre to push this back to the courts now.
Agreed, that the Federal Court might subsequently hold Section 88A(1) to be in conflict with Article 12(4) of the Constitution. However, Federal Court decisions are not cast in stone.
It is not uncommon for Federal Courts to review its earlier decisions or vary their earlier interpretations by using different modes of interpretation, especially in a contentious interpretation such as this.
Why must parliament hide behind the decision of the courts when they are there precisely to pass laws and make amendments when courts have reached a deadlock?
I initially expected Barisan Nasional component leaders, who fought hard to have this Section 88A(1) inserted in the first place, to voice their objections when it was subsequently withdrawn.
However, they took a non-confrontational stand by claiming that the Law Reform (Marriage and Divorce) (Amendment) Bill 2016 without Section 88A(1) was still good enough to address other issues related to the conversion of a spouse.
The loudest critic on the withdrawal of Section 88A(1) has been former law minister Zaid Ibrahim.
In a way it gives me hope in our Malaysia-ness to see a Muslim Malay leader standing up against the grave injustice it would cause to non-Muslims. Special thanks to Ipoh Barat MP M Kulasegaran for arguing the people’s case in Parliament.
The unilateral conversion of a minor is a key issue that needs to be addressed. It should be about correcting an apparent injustice and be beyond toeing the party line. Sadly, it is an opportunity lost.
A minister, as reported in the media, said the Bill was a way forward in resolving issues pertaining to marriages and divorces when one partner converts to Islam.
He was further reported as saying that the said Section 88A(1) did not obtain the agreement of the Attorney-General as it was in conflict with the Federal Constitution, and might not get approval even if it were passed.
My question to the cabinet as a whole is this – isn’t the Attorney-General’s Chambers responsible for drafting Bills for the government in the first place? Didn’t the Attorney-General warn of this “conflict” when the cabinet first announced Section 88A(1)?
Why the last minute withdrawal and this justification for it?
It is really sad and frustrating when our government succumbs to political pressure and fails to correct a grave injustice that they know exists.
With the passing of the Law Reform (Marriage and Divorce) (Amendment) Act 2017 without Section 88A(1), it surely ends the hope of this injustice being corrected anytime in the near future.
There will be more cases like Indira’s and Subashini’s. We just have to helplessly watch it happen again and again.
There will always be husbands who will use this loop-hole in law for their own ends. The government could have sealed that loop-hole, or at least attempted to do so and taken the high moral ground.
But it didn’t.
Azalina was quoted by FMT as saying that the new law urges those who convert to Islam to face the civil courts if they want to dissolve their marriage.
She was quoted as saying, “They should be jantan (man) to face it.”
Perhaps she should make that call to her cabinet colleagues. Think about it.
Murugesan Sinnandavar is a former MIC secretary-general and practising lawyer.
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