by manu themis, Donplaypuks® intrepid correspondent for true justice affairs
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The 5-man panel Federal Court justices must be congratulated for their decision yesterday confirming the supremacy of Civil Law in resolving civil marriage disputes and related conversion to Islam cases.
They did this in the case of S.Deepa vs ex-husband N.Viran aka Izwan Abdullah.
Their justices ruled that marriage annulments and ancillary orders following the conversion of one party to Islam cannot be made by the Syariah Court. Divorce and custody in civil marriages should be decided by the Civil Court.
But, the manner in which they went about awarding split custody of the children involved in the case, left a bitter taste in their mother, Deepa's, mouth. In their peculiar wisdom, their justices awarded custody of son Mithran (8) to his father, and daughter Sharmilla (11) to Deepa, after interviewing the children alone in chambers!
Now, really, what do 8 and 11-year old under-aged children know about religion or life, when manipulated by a father with ulterior motives? Especially, a father who broke Syariah laws and illegally converted his children to Islam without their mother's consent, and kidnapped them from their mother's home?
How could senior Federal Court judges who should know better, not realize how traumatized the children must have been? How could they expect such confused innocents to make any sensible choice, frightened as the must have been when confronted by five strange and imposing old men in black robes, no matter how sweet their words?
Let us look at the history of this case:
1. Deepa and Viran, both Hindus, were married under Hindu rites in 2003.
2. Viran filed for divorce in 2011 and converted to Islam in 2013.
3. Viran also had both his children converted to Islam without Deepa's consent, despite which the Syariah administration allowed the conversions to stand.
4. Deepa won back custody of her children in April 2014 at the Seremban High Court. (In May 2015 the court of Appeal affirmed the Seremban High Court decision).
5. Two days after the Seremban High Court decision, Viran kidnapped son Mithran from Deepa's home. Viran justified his criminal conduct by claiming that in 2012, the Syariah Court had granted him custody, even though his converting the children without the mother's consent was illegal.
6. Despite a court order, Police Inspector General Khalid Abu Bakar astonishingly, refused to arrest Viran, claiming that there were two conflicting court orders and that "a father does not kidnap his child". He asked the parties to "settle the matter privately"!!
So, what we have here is a scurrilous man who illegally converted his under-aged children to Islam without their mother's consent, and then, when ordered by a valid and competent Civil Court to comply with its custody order, forcibly kidnapped a child from his family home.
More than that, the Syariah has taken a back-to-the-wall 'it's us or them' myopic attitude. Instead of annulling the illegal conversions, they have continued to flaunt it in the completely innocent mother's face. They may have relied on an earlier case of Islam conversion tussle involving yet another unfortunate Hindu mother, Indira Gandhi, where an idiotic judge ruled that 'parent' in law meant that on their own, either the father or mother in a civil marriage could convert their children to Islam.
Of course that ignorant judge had not seemed to have been aware of the Constitution and its definitions section which says that any word in the singular includes its plural. In this case, the Syariah approved the children's conversion in their absence, and yet refused to back down when challenged on legal non-compliance!! CLICK HERE AND HERE for details of that travesty of justice.
Of course that ignorant judge had not seemed to have been aware of the Constitution and its definitions section which says that any word in the singular includes its plural. In this case, the Syariah approved the children's conversion in their absence, and yet refused to back down when challenged on legal non-compliance!! CLICK HERE AND HERE for details of that travesty of justice.
The Cabinet was supposed to resolve those mistakes in law in black and white, but never got around to it.
So, while yesterday's decision by the Federal Court has gone a long way to settling the law on civil marriages and related Islam conversion cases, Deepa would be right in feeling that justice was not delivered in her particular case and circumstances:
1. The unilateral conversion of the children was illegal and did not comply with Syariah administration rules. Therefore, their justice should have ordered the conversions to be annulled as an administrative error, as affirmed by a judge at the Court of Appeal.
2. Custody of both children should have been awarded to the mother, Deepa. Who could ever trust a man who broke Syariah laws by converting his under-aged Hindu children to Islam unilaterally, broke civil laws ordering surrender of children's custody and terrorized the children by kidnapping them in front of their mother. In Malaysia, a conviction for kidnapping carries whipping and a life or death sentence! What moral and ethical lessons do the judges think the son will be learning from his criminal father? What kind of role model would he be to his son?
3. The judges ordered, on the application of Viran that, because of their split custody order, alimony payable by Viran to Deepa be reduce from $500 per month to $250 per month. Why? Who broke the marriage and who asked for split custody? Can a single mother bring up a child with just $250 a month? Which planet are our judges living in?
4. No action was recommended against Police Inspector General Khalid Abu Bakar for refusing to comply with a court order to apprehend Viran and return custody of the children to Deepa. Is Khalid, who has a law degree, above the law? This looks like a cop out by the highest court in the land. CLICK HERE.
The impression we get is that the judges are afraid of putting the Syariah courts and its administration in its place in case "the natives get restless". But, it is this pussyfooting that is at the root of these conversion issue problems.
I have nothing bad to say about Islam nor do I wish to debate about Syariah laws.
All I demand is that our administrators and judges follow the Constitution with good intent and true justice - substance over form - in mind.
That scurrilous smug and sneering Viran's face-saving parting shot to Deepa - "I pray my former wife will have the revelation to embrace Islam" - tells all. CLICK HERE.
Viran is laughing all the way home, thinking he has got away with several serious criminal acts. Their justices may think that it was a fair compromise. The world probably thinks that tearing a son away from his natural and innocent mother is a crime against humanity akin to forced re-settlement of natives.
Innocent and victimized Malaysian Hindu mother Deepa did NOT go to the Federal Court looking for a compromise. She went there to ask for her Constitutional rights to be confirmed, enforced and protected! Instead, she had her guts yanked out. Their justices may have thought that somehow things got equalized when they split custody of the children. But, what really happened is as as though your house gets robbed, and when caught, the robber gets to keep half the loot. One party got more equalized than the other!
Innocent and victimized Malaysian Hindu mother Deepa did NOT go to the Federal Court looking for a compromise. She went there to ask for her Constitutional rights to be confirmed, enforced and protected! Instead, she had her guts yanked out. Their justices may have thought that somehow things got equalized when they split custody of the children. But, what really happened is as as though your house gets robbed, and when caught, the robber gets to keep half the loot. One party got more equalized than the other!
And here I ask the IGP two questions that many Malaysians would really like an answer to, but are afraid to ask openly:
1. Would you have refused to arrest Viran had he not converted to Islam?
2. Would you have refused to arrest Viran had it been a case where he had NOT converted to Islam and had kidnapped the son from a wife who had converted to Islam?
2. Would you have refused to arrest Viran had it been a case where he had NOT converted to Islam and had kidnapped the son from a wife who had converted to Islam?
Donplaypuks® with the Constitution and religion, o' justices and IGP!
16 comments:
As a mom and a non-Muslim,I seriously feel justice was only partially served in Deepa's case. If a laywoman like myself understand civil laws always take precedence over shariah, I seriously wonder y d learned judges thot so too YET declined to give Deepa d full justice she sorely deserved through her 3 yrs of torment n heartache......by rightly returning BOTH children to her!!
Any non-Muslim, would b worried about their children's future in a country where Islam is widely followed n practiced n d many cases till date where it would seem minorities end up being bullied, bashed n their religious rights disrespected. I'm proud Buddhism is generally not d cause of injustice n suffering to peoples of other faith.
The judges pardon me were all Muslims, surely the emotional aspect of this religion is what causes all the damage and the ill-feeling between Malaysians. A judge is supposed to be a good man and TRUE....there is a spiritual quality in the dispensing of justice, you as a judge are taking on the mantle of Almighty God himself..........how do they qualify to this eminent office with such a debased view of the precious quality of life........
All the judges were Muslims, so perhaps the emotional bond to the religion took precedence perhaps? ...............Blow me down!
It will be most interesting to see how the son turns out when he reaches the rebellious teenage years. For the moment the Stockholm Syndrome with lots of ice cream etc has done the job.
The inference that the racial composition of the judges would have infected the judicial decision would not be sustainable, unless the inherent bias is shown to exist. Inferences of racial bias that are not based on found facts or circumstances, but arrived at merely on suspicion, violates the principle of Administrative Laws.
Having said this, the judges in this case took cognizant of the children’s wishes as expressed by them in a manner and language congruent to the children’s age and mental disposition extracted in a faulty manner. What is deficient, a serious one at that, in this case is the “30 minute “ the judges spent interviewing the children and basing their decision on this is the gross miscarriage of justice . A 30 – minute interview with a two traumatised children in a intimidating environment of the court setting would not have given a true and expression closest to their wishes. It would have been a traumatic environment for young children, confused and torn loyalty to the two parents to express their feelings freely within s short span of the time.
In most divorce proceedings where the children’s interest are cardinal, under the International Convention on the Rights of the Child (CROC) a professionally qualified family counsellor is assigned to prepare a report many days before the hearing date. The counsellor talks to the children on many occasions in their own living environment to extract their true feelings and intentions. Failure to adopt this basic essential procedure has given rise to a flawed outcome, and herein lies the jurisdictional error in the decision of the judges.
If a decision is going to be based on the wishes of the children, as it was in this case, it is indeed important that a proper professional welfare report should have been prepared for the consideration of the judges . To prepare a such report it would have taken many hours of interaction with the children in a friendly talk at their level in a non-intimidating surrounding that the true intention and the wishes of the children could be taken in consideration for a fair decision.
By that understanding the judgment would have made no difference if there were two non Muslim judges in the panel giving dissenting judgment. If by a long stretch of the imagination there had been 3 non Muslim judges and they had ruled in favor of mother, again there will be an assumption that they had ruled as such because they were non Muslims. You just cannot win. Bear in mind that in the Appellant Court all 3 Muslim judges ruled in favor of the Hindu mother (The panel lead by Justice Abdul Aziz Abdul Rahim, and with Justices Tengku Maimun Tuan Mat and Ahmadi Asnawi unanimously ordered Izwan to pay RM10,000 in legal costs to Deepa.) It;s wrong to conclude as such. It's damned if you do and damned if you don't if they had ruled wholly in favor of one party. I am sure the learned judges must have dwelt on this long and hard before giving judgment.
In my humble opinion, a sound Judgment. If there're any failures, then surely the Contempt of Court that was not heaped on both the wayward DA & the IGP (especially this twit! for bringing disrepute to the Uniform and the Judiciary)
7 Years and Still On Going in Racist Justice System in Malaysia and still nothing resolve is the Damage Malaysia will have to suffer after 70 Years of IS Islam Racist terrorist Melayu UMNO-Bangsat Negara ruling Malaysia.... Get your EPF money out If and When you can and convert to Foreign Currency before it loses 77% of the Value to USA $ when Economic Chaos Hits Malaysia Big time...By then 12 Separate States is Better than 1 STUPID MALAYSIAL!
A sad injustice delivered by affected minds. You don't divide children like a piece of property.
It is not justice imo, but the solution of a court doing its best to tiptoe through a minefield, which is what Malaysian society has become, with its deep unresolved (and régime-sponsored) ethno-religious fissures . A pale echo of Solomon, except that King knew the virtue of being decisive.
The whole tragedy started with the divorce then the issue got very messy when the cowardly da took the easy way out knowing the Regime's machinery will favour him. Well just too darn bad for him it didn't work as planned. Notwithstanding the religion issue, the children are like any other children (victims) caught up in the separation process. If the adults can't stay together then please to sleep together!
Any decent, reasonable person will agree victim Deepa received partial justice
P.Ramasamy DCMII Penang:
In the case of S Deepa's custody battle, the Federal Court decision can be metaphorically interpreted as "splitting the baby" or in a literal sense arriving at a compromise.
The court by giving the father, Izwan Abdullah, the custody of the son and the mother, the custody of the daughter actually engaged in a crude form of dispensation of justice. A form of justice that even the famous Biblical King Solomon known for his wisdom as well as harshness would have frowned upon.
Apparently, two women living the same house each had a son around the same age and even looked alike. However, one night one of the mothers, without her realization, smothered over the bay resulting in his death.
She cleverly removed her dead baby and put aside the other sleeping woman and took the baby that was alive and claimed that he was hers. However, the other woman realized that the dead bay was not hers and that the other woman had stolen hers.
Unable to resolve the matter, the two women with the baby went to King Solomon for judgment. Solomon instructed a sword to be brought and ordered his men to cut the baby into two so that two parts of the baby's body could shared between the two women.
However, the real mother wept and appealed to Solomon not to "split" the baby and urged him to give the baby to the "false" mother. Solomon was quick to realize who the real mother was and ordered the baby to be given back to her.
However, the five-man bench of the Federal Court failed to make a wise judgment that was in accordance with the law and the spirit of natural justice.
The court by going for compromise ended up by "splitting" the two children of Deepa. Under the concept of natural justice and the existing law as provided in the Law Reform (Marriage and Divorce) Act of 1976, it was the right of the children to be brought up as Hindus, that is, in the religion of their parents (at the time of their marriage).
While King Solomon never intended to "cut" the baby into two parts, the Malaysian Federal Court actually ended up splitting the children. The court wanted a compromise without realizing that its decision merely postponed and complicated custody battles in the country.
There is no point arguing about the supremacy of civil courts on matters of marriage and divorce involving non-Muslims when the court itself has taken a backseat to the dispensation of justice.
How can you make civil courts supreme when Izwan has basically "abducted" his son from the mother? What is more, the state Islamic agency in Negeri Sembilan condoned and abetted in the "abduction" of his son from the mother.
King Solomon was a harsh and sometimes described as cruel ruler, but there is consensus he was a just ruler. His judgment was flawless and took decisions that were brave and unpopular but to ensure justice prevailed in his kingdom.
But unfortunately, the apex court, the final arbiter of justice, has failed Malaysians in general and Deepa in particular. It went all against tenets of natural justice by striking a compromise by not placing primacy on justice and fairness.
The greatest tragedy of Malaysia is that the entire court system has failed to extricate itself from the tainted larger social, cultural and political milieu.
The courts and judges have come to be seen by the public as mere appendages to self-seeking politicians and government bureaucracy that intend to promote the notion of Islamic hegemony.
We only wish that we have judges who can make wise and learned judgments and adhere to the spirit of upholding justice and fairness.
this decision by the federal court marks a a very sad day in the history of our country. can never imagine this would ever happen in our multi racial country. very sad indeed.
This would never happened in our country had Mahathir not screwed up the JUDICIARY. The sacking of the then Lord President Tun Saleh Abbas and four other most senior judges spelt the death kneel for justice. Till to day we are feeling the after effects of this action. The judgment in the case of Deepak is just one of them. Expect more of the same.
Let me start by stating the obvious. The Federal Court in the case of Deepa v Izwan did not have the jurisdiction to grant the custody of a child to his Muslim father, under the Law Reform (Marriage and Divorce) Act 1976.
The general rule is that the Act does not apply to a Muslim, according to its Section 3(3). However, the same section, when read together with Section 51(2), provides an exception: the High Court is able to grant the custody of a child to his Muslim parent but only upon the dissolution of the marriage by the High Court.
Since the High Court is yet to so dissolve the marriage of Deepa and Izwan, where did the Federal Court derive its power to grant custody of their youngest child to Izwan?
I believe that the Federal Court has made a fundamental *error*.
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