Hindu Rights Action Force (Hindraf) chairman P. Waytha Moorthy said the case clearly falls within the jurisdiction of the civil court. — TRP file pic

KUALA LUMPUR, Jan 15, 2015:

The Federal Court should be guided according to the Federal Constitution and enacted civil legislation without considering the implications of Syariah Law in the custodial dispute of a Muslim convert.

Expressing shock over the court’s decision yesterday, Hindu Rights Action Force (Hindraf) chairman P. Waytha Moorthy said the case clearly fell within the jurisdiction of the civil court.

A Putrajaya apex court’s five-man bench yesterday gave Izwan Abdullah a stay to the custody order by the Seremban High Court which granted his ex-wife S. Deepa custody of the child.

Izwan would be allowed to keep the couple’s second child, a six-year-old boy, while the court hears his appeal to challenge the recovery orders and custody of the child.

“Hindraf is shocked by the decision of the Federal Court yesterday to grant the stay order for the custody, recovery of the child and contempt proceeding obtained in the High Court and Appeal Court. This appears to be haphazard without reflection on the existing laws and the will of the people.” Waytha said in a press statement today.

Adding that the highest judicial authority did not consider the welfare of the child as the child had been always with the mother, Waytha said the reluctance and abdication of the Federal Court to uphold the Constitution and legislation, both in word and deed, continued to impinge on the constitutional rights of the non-Muslims.

“It does nothing to restore the faith of the public on the judicial process whenever a matrimonial dispute arises between a non-Muslim and a Muslim convert.

“It is very difficult to imagine how the administration of justice can be served if the parties are allowed to abuse the process of the court by hopping from one jurisdiction to another over the same subject matter and abusing the syariah provisions.”

He then explained that Section 51(2) of the Law Reform Act (LRA) 1976 was enacted by Parliament seemingly having in mind to give protection to non-Muslim spouses and children against a Muslim convert.

“By implication from Section 51(2), it is obvious that the High Court has jurisdiction to hear and determine ancillary reliefs such as custody for non-Muslim spouses as a result of the one party’s CONVERSION.”

Waytha claimed that a similar stance was echoed by Tourism Minister Datuk Seri Mohamed Nazri Abdul Aziz on April 23, 2009.

He said Nazri was reported as saying that the Cabinet had decided that in the event of any dispute, a child must be raised in the faith professed by both parents at the time of marriage.

The Hindu rights activist explained that the ability of a Muslim convert to shield oneself against a non-Muslim in matrimonial disputes not only deprived the non-Muslims of their constitutional right in Article 8 but creates a grave injustice to non-Muslim spouses and children whose only remedy would be in the civil courts.

“Hindraf opines the Federal Court should be guided according to the Federal Constitution and the enacted civil legislation without considering the implications of the syariah law as this case clearly falls within the jurisdiction of the civil court.”

He urged the Federal Court to take “the bull by its horns” and administer justice through the civil process as the case clearly fell under the Law Reform Act  to restore the public’s confidence in the judiciary