Lawyer: It takes two to tango in a marriage

PETALING JAYA: The thorny issue of unilateral religious conversion of children has been put to rest following the Federal Court’s landmark decision in the Indira Ghandi case.

The decision “affirms that the judicial power of the Federation is vested exclusively in the civil courts, and cannot be removed or abrogated by Parliament by way of constitutional amendment”, said constitutional lawyer Syahredzan Johan.

He said it also affirms that Article 121 of the Federal Constitution does not oust the jurisdiction of the civil courts, nor does it confer judicial powers to the Syariah courts.

Interpretation of “parent” in Article 12(4) is now taken to mean both parents and not either one as previously argued, he added.

“This is now the law and courts will be bound by the judgment, especially (in) pending cases,” he said.

Andrew Dass Solomon, a lawyer experienced in drafting laws, said the decision “puts an end to everything” with regard to the issue of unilateral conversion.

“The Federal Court is the last court of appeal and there is no more appeal,” he said.

He said the decision would be binding on all courts under the legal principle of stare decisis (to stand by that which is decided).

However, he said the judgment will not be retrospective and will only apply to future cases and unambiguous pending cases.

Family and civil law practitioner Amsa Naidu said the decision was “long-awaited” and should have been made from day one.

“This is the most correct decision that the court can come up with at this particular time, when there is a lot of sensitivity over religious issues in the country.

“It is a very fair decision for both parties, whether you are a Muslim or non-Muslim,” she said.

Amsa said the sanctity of marriage should be respected when couples tie the knot.

“If you decide to change your faith, you shouldn’t let your spouse, or the children born from the inception of the (marriage) contract, be subjected to your (new) faith.

“At the end of the day, the Constitution is supreme and (this case was) decided in accordance with it,” she said.

Pending cases on unilateral conversion will now be bound by this decision, and this particular case law is “the authority” now and will remain so until another Federal Court bench overrules it, she added.

Constitutional lawyer Nizam Bashir said the judgment resolves a long-standing controversy as to whether a parent can unilaterally convert a child.

He said Article 12(4) of the Federal Constitution provides that the religion of a person under the age of 18 shall be decided by his or her parent or guardian.

“So it is clear now with this judgment that ‘parent’ in Article 12(4) requires a decision by both the father and mother,” Nizam said.

Asked if it constitutes a precedent for older and pending cases, Nizam said: “If there are two decisions of the Federal Court which conflict on a point of law, the later decision prevails over the earlier one.”

Bar Council Syariah Law Commit­tee chairman Datuk Kuthubul Zaman Bukhari said the decision is in line with Article 14 of the UN Convention on the rights of the child, which gives equal rights to both parents.

“Hence, the state must respect the rights and duties of both, namely the father and mother, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child,” said Kuthubul.