From Shad Saleem Faruqi
It is always heart-wrenching to hear of a mother pining to see her children, and being prevented from doing so. This is especially so if the mother is granted legal custody.
The person(s) standing in the way of Loh Siew Hong and her three minor children, and why, are questions of fact which require an independent investigation.
I will comment only on the important constitutional questions raised in this case.
Custody order is binding
First, a custody order from the courts is binding on all persons and any defiance of the judicial order may amount to contempt of court. Nobody is immune from this law.
Federal Constitution is supreme
Second, the Federal Constitution is the supreme law of the land and it is superior to all other written laws, including state enactments. Any state law that violates the Constitution can be struck down by the superior civil courts.
Superior courts decide the law
Third, whenever there is a conflict between any laws or ambiguity in any law, as is almost always the case, the superior courts are the ultimate arbiters of what the law says and means.
The Constitution is what the courts say it is. No one can arrogate this power to himself. It is open to us to express our disagreement with judicial views and visions of the law but we all have a duty to obey. In a democracy we can censure, freely but we must obey promptly.
Unilateral conversion is unconstitutional
Fourth, the 2018 M Indira Gandhi Federal Court decision is binding authority for the proposition that unilateral conversion of minors to another religion without the consent of both parents is unconstitutional.
The case is also the authority for the ruling that in Article 12(4) the words “parent or guardian” mean both parents or guardians. This is so because the Constitution in Schedule 11, para 2(95) says that “words in the singular include the plural”. The Indira Gandhi verdict has been affirmed in several later decisions.
State bound by federal court decision
Fifth, if the Perlis state enactment 2016 provides to the contrary, then it needs to be amended and updated to conform to the 2018 apex court decision. Even if there is delay in its amendment, all authorities in Perlis are nevertheless bound by the Federal Court decision with effect from 2018.
Equality under the law
Sixth, in my personal view the Indira Gandhi decision is also supported by Article 8 on equality before the law and equal protection of the law. Article 8(2) says that “except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion … in any law”.
In cases where one parent converts to Islam, the other parent does not automatically lose her or his right to an equal right and duty in relation to the child’s upbringing, education and religion.
Translation not a way out
Seventh, the learned mufti of Perlis has raised the interesting issue about Article 160B which authorises the Yang di-Pertuan Agong to prescribe a national language translation of the Constitution as the authoritative text.
The learned mufti relies on a translation in which the word “parent or guardian” in Article 12 is translated as “ibu atau bapa”. However, there is no proof that this translation was officially prescribed and notified in the government gazette.
In any case, Article 160B cannot stand alone. If a translation of the supreme Constitution is done totally outside of Parliament and without the consent of the Conference of Rulers and the Governors of Sabah and Sarawak under Articles 159 and 161E, then it will be open to constitutional challenge.
Translation is a work of art, not science. If a translation – even if prescribed under Article 160B – violates fundamental rights or the federal-state division of powers, especially the rights of Sabah and Sarawak, or if it does violence to any of the entrenched topics in Article 159(5), its validity will be questioned.
Article 160B cannot be employed to sweep away in an extra-parliamentary way the delicate compromises that the architects of our Constitution in 1957 and 1963 put into our Basic Law.
Prof Emeritus Shad Saleem Faruqi is a constitutional law professor at Universiti Malaya.
The views expressed are those of the writer and do not necessarily reflect those of FMT.