“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, warned Bar Council President Steven Thiru. “This is plainly unconstitutional.”
Critically, he added, 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 Law Reform Act (LRA), must be jealously guarded and never compromised.”
“The civil courts must always exercise this important jurisdiction wisely.”
The Bar Council was maintaining that the Cabinet directive announced in April 2009 through the former de facto Law Minister 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 — was just and fair, and was constitutionally correct.
Further, said Thiru, the Bar Council agrees with the views expressed by the current de facto Law Minister Nancy Shukri that the welfare of children was 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.
The Bar Council was commenting on 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).
However, stressed Thiru, the Bar Council was 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 has now erroneously exonerated the Inspector-General of Police 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, lamented Thiru. “The Syariah Court was created by statute, and its jurisdiction was 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.”
In jurisdictions such as England, Singapore and Australia, judges do not routinely interview children to ask them which parent they wish to live with, said Thiru. “Instead, a welfare report on the children is done well before the court decides on custody.”
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.