Has the civil court failed Indira Gandhi?

Picture credit: japantimes.co.jp

The Court is a place where we can seek redress and justice. But for M. Indira Gandhi, who is engaged in a custody battle with her Muslim-convert ex-husband, the legal system is not a place she can seek any solace for her problems.

Before going any further, it must be said that Muslims in Malaysia are governed by certain Islamic laws. These laws have been in existence since our independence. Islamic laws are administered by the Shariah Courts as provided by Article 121 (1A) of the Constitution of Malaysia.

Shariah laws in Malaysia do not apply to non-Muslims and it is a creature of State Law. Article 74 of the Federal Constitution, read together with the State List, prescribes that Islamic law and Islamic matters – including the establishment of Syariah courts – fall under the jurisdiction of the State.

The State List stipulates that the Syariah only court has jurisdiction over persons professing the religion of Islam and in respect only of 26 matters. It also further provides that the Syariah court shall not have any jurisdiction in respect of offences unless conferred by federal law.

We know that under Malaysia's federal constitution, a guardian or parent can legally decide on the religion of any child of theirs under the age of 18. But for Indira's, it is unconstitutional because it was decided by her husband only.

The Article 12(4) of the Federal Constitution states that the religion of a person under 18 years of age shall be decided by “his parent or guardian” — refers to both genders and both parents.

According to former bar council president, Christopher Leong, Article 160, read with the Eleventh Schedule (of the Federal Constitution), states that ‘words importing the masculine gender include females’; and ‘words in the singular include the plural, and words in the plural include the singular’.

More importantly, when it comes to the conversion of minors without the consent of both parents, should the court, in such circumstances, only restrict itself in the interpretation of the word “parent” in the singular to a narrow interpretation when the results can be unjust?

The recent Court of Appeal’s decision basically states that it cannot interfere with the conversion of Indira’s children. It is the opinion of the Court of Appeal that this is a matter for the Shariah Court to decide upon. Might this be correct?

Indira, not being a Muslim, has no right to seek recourse in the Shariah Court. She is left in limbo. This fact is clearly known to the learned judges of the Court of Appeal.

How can justice be dispensed when the courts do not look beyond such ‘procedural’ matters?

Is justice now reduced to mere technical procedure or will the courts fulfill their role as a mechanism that upholds the rule of law. A forum to resolve disputes and to test and enforce laws in a fair and rational manner?

It is the spirit and not the form of law that keeps justice alive. ~ Earl Warren