Recently, on March 12th 2004, a verdict was passed in a (to me at least) rather remarkable court-case. The case involved the conversion to Islam of two minor children by their father, formerly a Hindu. The wife and plaintiff, still a Hindu, requested the conversion be declared null and void on the grounds that, firstly, the conversion was made without her knowledge and consent; secondly, she, being the natural mother, has the right to determine the religion of her children; and thirdly, she has at lest the equal right to determine the religion of the children.
The husband's main objective to his wife's plaint was that the Civil Court did not have jurisdiction to hear this case. According to the defence council (and the Attorney-General), jurisdiction rests solely with the Syariah Court.

Without focusing too much on the judge's motivation with regard to the verdict, he decided to rule in favor of the defendant, the husband, mainly on the following grounds:

Article 12(4) of the Federal constitution states that the religion of a person under the age of 18 shall be decided by his parent or guardian. The words "parent" and "guardian" are used here in singular sense. After an extensive explanation of English grammar, the judge decided that because of the use of singular in stead of plural wording, a Muslim father (i.e. a single parent) has the capacity to convert his children without the consent of the mother. And as there exists a written law (Section 92 of the Administration if Islamic Law (Federal Territories) Act 1993) stating that any question as to whether a person (in casu the children) is a Muslim, shall be decided by the Syariah Court. The Civil Court has therefore no jurisdiction in this matter.

On the surface, to a layman, this could seem a decent judgement. The implication though is, that the wife has absolutely no legal remedy, neither in Civil Court, nor in Syariah Court as the Syariah Court has no jurisdiction to hear her, being a Hindu and Non-Muslim.

The judge's view on this discrepancy: "It is not for the Courts to legislate and confer jurisdiction to the Civil Courts, but for the State Legislature to provide the remedy. The role of the Courts is to interpret the laws and whenever necessary to give effect to the purpose or object of the laws enacted by the legislatures."
This reflection must be based on the worldwide used theory on the division of powers by the French philosopher Montesquieu. According to this theory the government should be divided into three distinct branches in order to create a system of checks and balances:

• The legislature, for the making of law;
• The judiciary, for the interpretation and scrutiny of the law;
• The executive, for the enforcement of the law.
  

With this in mind, the judge gave a proper verdict. Given, he could have followed a less strict and narrow interpretation, that might have resulted in a verdict in favor of the plaintiff, but the disturbing fact is, that there was room, and enough room at that, for such an interpretation of the existing laws.
This exposes a much more serious and frightening problem. There is something fundamentally wrong with certain laws in Malaysia to allow a hyatt of this kind in the legal system to exist. To have proper legal remedies is a basic and fundamental human right.

Article 10 of the Universal Declaration of Human Rights reads: "Everyone is entitled, in full equality, to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations….." (Not being as grammatically strict as the judge and assuming that the term "his" should be interpreted as to include the female part of society).

In conclusion, in my opinion there was nothing wrong with the verdict, from a legal point of view. It is the judge's judiciary duty to only interpret the existing laws. That the outcome was an appalling one is not the point.

The point is that, sadly, current laws can be interpreted in such a way that they seriously infringe upon basic human rights.

Daniëlle Cazander
Intern
April 2004

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