Wednesday, November 30, 2016

Adopt singular definition of parent as in Subashini's case, court told

 Hafiz Yatim     Published     Updated

A senior federal counsel told the Federal Court today that it should adopt the decision from the case of R Subashini vs T Saravanan in defining the definition of "parent" in the Federal Constitution to mean singular.

Counsel Arik Sanusi Yeop Johari, who was representing the Education Ministry, further showed the definition of "parent" according to four English dictionaries to mean a single parent, and parents to show plural in the dictionaries.

He was trying to prove the point on the third question of law in the M Indira Gandhi vs K Pathmanathan @ Mohd Ridhuan Abdullah's case today, that the apex court should accept the definition of "parent" within the constitution to mean singular.

The third question posed to this court was:
  • Whether the mother and father (if both are still surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam can be issued in respect of the child.
Arik Sanusi, who is the director of the syariah section of the Attorney-General's Chambers also told the court that the subject matter in this case concerned Islamic law and Muslims, and for this matter, the civil court had no jurisdiction.

However, when asked by Chief Judge of Malaya Zulkefli Ahmad Makinudin, who was leading the five-member bench, that the constitution stated that a singular word would mean plural, while plural would also mean singular, Arik Sanusi was not able to address the issue.

Another senior federal counsel, Shamsul Bolhassan, told the court that as conversion to Islam of a minor falls under Islamic family matters, the rightful jurisdiction should be the syariah court and not the civil court.

He also said since the Perak registrar of muallaf had issued the certificate of conversion, it was a conclusive proof.

But when asked by Justices Zulkefli and Abu Samah Nordin on who testified that the certificate was valid, the parties representing the government could not answer.
Queried on the evidence of conversion, Shamsul said the certificate was issued after the registrar was fully satisfied that a parent had consented.

“The requirement of the consent from the father is good enough,” he said.

Lawyer Hatem Musa who appeared for Ridhuan told the court that he has adopted the submissions made by the federal counsels.

'Single parent consent is sufficient'

State legal adviser Rohana Abdul Malek, who appeared for Perak Islamic Department and Perak registrar of muallaf, told the court that Section 96 and Section 106 of the state enactment are stand-alone provisions and do not need to be read together, meaning single parent consent is sufficient without the need to recite the kalimah syahadah (affirmation of faith).

“The documents from the religious authorities are conclusive proof of that and can be relied upon on the status of (conversion) of the person,” she said.

Indira Gandhi, a kindergarten teacher, is seeking determination from the highest civil court in the country, whether the unilateral conversion of her three minor children in 2009 by her former husband was lawful following the certificate of conversion issued by the Perak's Registrar of Muallaf.

The children were converted without their presence and the recitation of the kalimah syahadah, whereby a certificate by the registrar was issued.

It was reported that a bill containing the amendments to the Law Reform (Marriage and Divorce) Act was tabled in Parliament last week, to prevent unilateral conversion, where children from a civil marriage would require consent from both parents if the child was converted.

Lawyer Fahri Azzat for Indira Gandhi submitted that the case of Subashini should be disregarded on the interpretation of a parent. At the last session two weeks ago, they had asked for a re-visit to the Subashini case.
Another lawyer Aston Paiva said the recitation of the kalimah syahadah is an essential ingredient to determine if a person is a Muslim, as defined in the Perak constitution.
K Shanmuga, the third counsel for Indira Gandhi, told the court that the issue here was whether the state government was right in issuing the certificate of conversion.

He said as long as both the parents are alive, consent ought to be given by both of them if the children are underage.

The bench deferred in giving its decision to a date to be fixed.

Besides Justices Zulkefli and Abu Samah, the other judges are Chief Judge of Sabah and Sarawak Richard Malanjum, and Justices Zainun Ali and Ramly Ali.

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