A child knows its mother from her face, voice, smell and touch, and associates her with warmth and security. They speak in a language of smiles, cooing sounds and, of course, milky sustenance. Baby finds comfort in Mamma, who completes the circle of dependency that words cannot fully describe. This chemistry is as old as the dinosaurs and is known to us as mother’s love.
A child of 11 months doesn’t concern herself with much other than food and sleep. Her mind is still learning about the world in a Pavlovian way. What she senses is sorted into what is safe or unsafe and what brings comfort or stress. It is more likely that the kid would protest hunger or sleepiness with a big fit of bawling than profess a religion. Thus, a certificate of conversion for one as young as this is in essence a deed of ownership that gives the converted parent custody of the child. So let us call a spade a spade.
Why M Indira Gandhi and K Pathmanathan broke up is not known, but one wonders how the union that gave them three children could produce so much venom. Sadly, when this much ill will boils in the pot, there is the risk that ill will’s cousin, malice, might have a role to play in the tragedy that has turned these innocent children into pawns.
Whatever her parents may have quarrelled about, Prasana Diksa was 11 months old when she was separated from her mother and her siblings by her father, now known as Mohammad Ridzuan Abdullah.
Indira pinned her hopes on the Court of Appeal (COA) affirming the verdict of the Ipoh High Court, which annulled the conversion of the three children. But her hopes were dashed when the COA instead overturned the judgement in a 2:1 decision.
Article 12(4) of the Federal Constitution has this to say about a parent’s right to convert his or her children: “The religion of a person under the age of eighteen years shall be decided by the parent or guardian.”
The lower courts are bound by convention to follow the precedent set by Subashini Rajalingam v. Saravanan Thangathoray & Other [2008] where the Federal Court took the term “parent” to mean a single parent. The overturning of the Ipoh High Court verdict looked like an effort by the COA to be technically correct by stuffing the Jack back into the box, without the same effort being taken to find a just cure. It begs the question of whether some precedents might be too unjust to follow if justice was to be done and seen to be done.
As a result, much of the talk in the media and in legal circles today have homed in on the word “parent” and if its meaning should be taken to reasonably include the plural sense of the word if both parents were alive.
The other issue that the COA had to deal with was whether the Ipoh High Court had overstepped its jurisdiction by declaring the conversion unsound. The COA decided that the issuance of the certificates of conversion, if problematic, should fall under the purview of the Syariah Court as it would be an Islamic administrative matter.
An appeal must now be made to the Federal Court within 30 days of the COA verdict, delivered on December 30, 2015.
My good friend, a Hindu guard who watches over the safety of the residents in my apartment block, asked me if the courts would grant custody to Indira if she herself converted to Islam. I answered “Maybe” and then remembered right away that that would be committing two wrongs without making a right.
We must bear in mind that the Federal Constitution is the highest law of the land and that all other laws are sub-legislation that flow from this. If the wording of Article 12(4) in the Federal Constitution has spawned unreasonableness in the operation of the law or opened it up to malicious use for purposes unintended, then it must be corrected at the legislative level. Directives issued by the government are useless unless they are legislated into law. So here is an opportunity for Parliament to do some good for a change.
Legal statutes may have imperfections but the judiciary, being aware of this, has chosen to remain safely on the side of serving the law to the letter, in this case the lack of an “s,” when they could also be serving the idea of justice and equality within the ambit of the law.
Let us pray that the Federal Court will grant leave, as only another Federal Court quorum can overturn a precedent set by itself. Indira and her kids trusted in the system, but it lost them nine years of their lives in their arduous journey and the system only managed to deliver them to the doorstep of a barren wasteland.