Damian S. L. Yeo & L. C. Goh (DSLY)
No. 2007, Lorong Sidang Omar, off Jalan Penghulu Abbas, Bukit Baru, Hang Tuah Jaya, 75100 Melaka

Tel : 06-2347011
& 06-2347012
Fax: 06-2347022


Tuesday, January 1, 2008

Subahsini's Decision a NO NO

I have read the decision of the Federal Court in Subashini's custody and divorce battle with much headache. I find it difficult to accept the reasoning by all the judges both dissenting judgement as well as the majority decision. I feel that a review has to be done hopefully by seven or nine justices as it involved constitutional arguments that needed not just three heads but a full panel. Though the decision clarify the jurisdictional powers of the Civil Court as the sole jurisdiction to dissolve a civil marriage when one spouse convert to Muslim. It did not addressed the fact that the Syariah Court is subordinate to the High Court of Malaya.

Though it is now settled law that the convert husband should seek divorce in the Civil Courts so that the non Muslim wife can seek legal redress, however what is more problematic now is that the Husband can now convert his son without informing the mother. This Federal Court's decision is absurd and without any basis and must be condemned. The Court should have looked at the decision of Chang Ah Mee's case that went further to decide that both parents must consent to the conversion of their child. What is the point of the Civil Court having jurisdiction to hear and decide on matrimonial disputes involving a spouse who has converted to Islam when it will take no action to prevent that converted spouse to also convert their children. Everybody should read the judgement in full and realize that the impact of allowing such unilateral conversion by any parent regardless of objections from the other parent. The other non-Muslim parent will not be able to re-convert the child out of Islam. The child will also be deprived of its right to convert out of Islam at the age of 18 and as such put the child in a catch 22 situation.

As Guan Eng stated in his press statement "By changing a child's religion without the consent of both parents will cause much heartbreak. Worse is that Subashini’s case has effectively lost custodial rights of both hers sons (where one is converted whereas the other remains unconverted with the mother) if the father proceeds with the conversion. Under Islamic law, a non-Muslim parent has no rights over a Muslim child."

This is one reason why the Malacca Bar is organising a forum "What Next After Lena Joy" this coming Friday at 7.30pm in Legacy Hotel. ALL are invited.

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