Thursday, February 11, 2016

Has Court rewarded act of disobedience?

TMI - Court gave ‘disobedient’ Muslim convert custody, says lawyers’ group

The Federal Court has rewarded a Muslim convert with custody of his son even though he was in contempt of a Seremban High Court order, says a lawyers’ group.

Lawyers for Liberty legal and campaign coordinator Melissa Sasidaran said Izwan Abdullah snatched his son Mithran (Nabil) from his ex-wife two days after the court granted custody to S. Deepa in 2014.

"The Federal Court seems to be rewarding a wrongdoer who had blatantly disregarded the High Court order, thus giving the impression that a wrongdoer can abuse the legal process and benefit from it," she said in a statement today.

Yesterday, a five-man bench chaired by Tan Sri Raus Sharif said a non-Muslim marriage did not dissolve when one party embraced Islam.

But the bench varied the High Court order and gave custody of Mithran to Izwan, and their daughter Sharmila to Deepa.

Melissa said the Federal Court should have also taken the inspector-general of police to task for failing to enforce the High Court order in recovering custody of Mithran who was forcibly taken away.

The judgment did not resolve the issue of unilateral conversion and custody obtained from the Shariah Court, she added.

“Deepa’s case is unfortunately one of the many instances where conversion to Islam by one spouse is being used in a very unfair manner in order to win custodial disputes.

I was wondering how the Federal Court would handle this admittedly delicate-in-Malaysia issue, particularly for Muslims and the Muslim judges (who I suspect must have probably been on tenterhooks), and I wasn't too surprised by its ruling, one with a 'compromise' settlement to (hopefully) please both non-Muslims and Muslims.

We have been informed that Judge Raus Sharif led a five-man bench to rule that a non-Muslim marriage did not dissolve when one party embraced Islam. It has been a great and erudite, nay, very wise and fair ruling.

But alas in the eyes of many, the the Federal Court ruling was marred by inserting in a 'compromise' element, where the bench varied the High Court order (which gave mum Deepa custody of both kids) by giving custody of the son to the Muslim father and the daughter to the Hindu mum, to wit, a 50-50% sharing.

The anger at this undeniable 'compromise' is that the father, Izwan Abdullah has now 'rewarded' (if you like) instead of being 'punished' for defying the High Court ruling in refusing to hand over the two children.

His argument was that he as a Muslim preferred to obey the Syariah Court ruling which gave him custody of both kids.

In the first place, and now reaffirmed by the Federal Court, syariah courts have no jurisdiction on non-Muslims like mum Deepa and should/could not rule against her.

In the second, syariah courts are also subordinate to civil courts. We have been told (Wikipedia): The Syariah Courts have jurisdiction only over Muslim in the matters of family laws and religious observances, and can generally only pass sentences of not more than three years imprisonment, a fine of up to RM5,000, and/or up to six strokes of the cane.

Thus his excuse that he preferred the ruling of the syariah court is irrelevant, and he should have been 'punished' by the court for holding the High Court's ruling in contempt.

Mind, some syariah officials believe, quite erroneously, that the syariah courts are on par with civil courts, despite their limited powers (see above).

And do you know how they came to such an erroneous belief? If you want to know, please read my Letter to Tun Dr Mahathir Mohammad, wakakaka.

Mohd Sofi Yusuf, (obviously a Muslim from his name but) stepfather of Deepa blasted the Pusat Dakwah Islamiah Negeri Sembilan for failing to exercise wisdom in accepting the conversion of Deepa's children.

FMT reported: He expressed the opinion today in an interview with FMT following the abduction of Deepa’s six-year-old son by her former husband, Izwan Viran Abdullah.

“Even though it was the Syariah Court that gave custody of the children to Izwan, the mess was started by the Pusat Dakwah, which converted them without getting Deepa’s consent,” he said.

Sofi said the centre had been “totally unfair” to Deepa. Sofi, a Malay-Muslim, is married to Deepa’s mother who has converted to Islam from Hinduism.

“The officer who converted the children should have consulted Deepa, my wife or myself before making his decision,” he added.

Please read my post Have Malaysian Muslims abused Islam? to know my thoughts on matter, in which I had written:

... as a non-Muslim I wonder why the Islamic religious authorities don't impose QA and QC on such cases, to wit, the entry qualifications, intent and vis-a-vis Islam the spirit of the 'convertees'?

If they don't because they are hard up for whatever whoever whichever converts, then they are the ones, and not so much the 'convertees', who have insulted Islam humongously.

To paraphrase a Christian saying, "To err is human, but for a cleric it's unforgivable"!



  1. In kangaroo courts,what do one expect from a kangaroo judge?Kangaroo judges have animal mentality,and when presiding over cases,tend to follow their trainers instructions and orders.A well trained kangaroo judge can be very obedient and useful to their masters.

    1. You should compile all your comments into a book. Airhead for Dummies.

  2. I can understand, but not agree with the way the judges ruled.

    It is Basic Common Law principle that the parties to a litigation must not be allowed to profit by breaking the law or ignoring a Court Order.

    If people get to keep their gain or advantage from stealing and kidnapping (that is what Izwan Viran Abdullah essentially did) or refusing to obey Court rulings, the legal system would be rendered impotent.

    The court can argue that they took into account the child's wish to remain with his father. There is room in Family Law for courts to take that into account. Given the child is only 9 years old, easily pressured by the parent who holds them at the time, that is difficult to support.

    However, in this increasingly "I am a Muslim first" Malay milieu, it is very difficult for a judge, no matter how learned, to rule against a Syariah court.

    It is a conundrum that Muslim judges in this increasingly Islamized country find themselves facing.

    I think most our senior judges have been heavily schooled in the British Common Law that our judicial system is based on. However many personally find it an alien value system.

    The current Chief Justice Arifin Zakaria, a graduate of University College, London, is on record calling for "Islamic Jurisprudence" to replace Common Law in Malaysia.

    In other words, in future, Civil Courts in Malaysia will likely be run according to Islamic principles.
    It would be like Hudud for All, without having Hudud.

    With UMNO and PAS increasingly locked in a romantic embrace, this is fast becoming a reality.

    1. another excellent comment by Jambu - thank smatey

  3. Firstly, this is a case which involves another Indian family involving conversion, custodian and religion of minors.

    Secondly, from the common law perspective, I repeat, from the common law perspective, I would agree with the Federal Court judges on their ruling that the non-Muslim marriage does not dissolve when one party coverts to Islam. In this case, as the marriage is not dissolved, the decision seems apt and relevant. It will be up to Nabil whether he wants to be a muslim or not when he reaches the age of majority. They are actually still in one family in the eyes of the law.

    On the whole, as I have indicated in the previous post, I agree with KT that “To err is human, but for a cleric it’s unforgivable”. I would also agree with Mohd Sofi Yusuf.
    Chief Justice Tun Arifin is a good man. An A student all the way, he did his LLM and Bar together in one year. He was formerly the state legal advisor for Perak and Melaka. What’s wrong with his statement that he would one day like to see Islamic jurisprudence to take over our common law? I would love too. But it is not easy. The non-Muslims in Malaysia would not agree. I have to respect that because it is their country too. It is up to the electorates and the law makers. After all, this is what democracy is about.

  4. A special bonus for the road.The IGP must be shown the bird,an extra big(Bai) bird for refusing to carry out a court order on this case.By twittering 24/7,the IGP had gone cuckoo.Sad,very very sad for Malaysians to have a moron for an IGP.