Human Rights Series - Part 1 (The Indira Story)

It is prevalent in Malaysia that, discriminatory treatment of women, particularly in relation to custody and guardianship rights stem from the conflict in customary and religious laws under the dual legal system in Malaysia; i.e. civil law and Syariah law.

This article attempts to provide an insight to the case of Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 7 CLJ 82 (HC) and Pathmanathan Krishnan v Indira Gandhi Mutho & Other Appeals [2016] 1 CLJ 911 (both collectively to be referred to as “the Indira case”).

Brief Facts of the Indira Case

a) Indira Gandhi and Patmanathan got married on 10 April 1993 and had three children.

b) Their marriage then encountered some hardships. On 31 March 2009, Patmanathan took the youngest child that was a nursing infant of eleven months, from her family home.

c) A police report was made and it was later discovered that, Patmanathan had converted to Islam.

d) Both Indira Gandhi and Patmanathan obtained court Orders; granting them care, control, and custody of their three children, from the civil and Syariah courts respectively.

e) On 30 May 2014, the High Court of Malaya then declared that, not only should custody be vested with Indira Gandhi; the youngest child is to be returned to her immediately.

f) Patmanathan was given until June 2014 to return the child.

g) Sometime in 2016, Indira requested for her matter to be heard before a nine-man bench in the Federal Court. Her application was denied; with no reason given, and Indira also lost the final battle at Federal Court – challenging the conversion of the three children.

h) Indira’s two older children are now 20 and 19 respectively; old enough to decide their own fate. The youngest child of Indira, who is now 7 years old, is still with Patmanathan, whose whereabouts remain unknown.

i) However, due to the conflicting orders issued by the civil and Syariah courts in Malaysia, the enforcement proved difficult.

j) In 2016, the Court of Appeal of Malaysia allowed Patmanathan’s appeal and set aside the High Court order in 2013.

Domestic Legislation and the Convention

a) The dual legal system in Malaysia (civil and Syariah system) creates a discriminatory regime towards women in relation to marriage and family relations. This is especially true as set out in the Indira case, wherein women can be seen to be deprived of fundamental rights to family and the upbringing of their children.

b) The Islamic Family Law (Federal Territories) Act 1984, which encompasses legislation applicable to Muslims in Malaysia, is discriminatory to women. Sections 82 and 83 of the Act causes mothers to ‘lose’ rights of custody and upbringing of her child if she is not Muslim. Section 88(1) of the Act further sets out that, the first and primary natural guardian of a minor child is the father, provided he is Muslim. A mother, under Islamic law, only has rights of custody of her child until seven (7) years of age.

c) Part IX of the Administration of Islamic Law (Federal Territories) Act 1993 deals with the fathers’ right to convert to Islam (as set out in Indira case); i.e. the mother, being a non-Muslim, is denied access to Syariah Courts – placing her in a discriminatory position as a woman and a mother.

d) It must be noted that, Malaysia ratified the Convention on the Elimination of All Forms of Discrimination against women on 17 February 1995 (“the Convention”).

e) These provisions [listed in paragraphs (b) and (c) above], are particularly discriminatory as they consist of both De Jure and De Facto Discrimination. De Jure Discrimination is prevalent in the legislation mentioned above. De Facto Discrimination is prevalent due to the lack of enforcement of Civil Laws in Malaysia; stemming from discrepancies in the dual legal system. In addition, patriarchal cultures and traditions of Islamic Laws in Malaysia continue to hinder the implementation of the Convention.

f) The lack of clarity in the dual legal system; particularly as to whether, civil or Syariah law applies to the marriages of non-Muslim women whose husbands convert to Islam. This is a growing concern in relation to discrimination against women in respect of marriage and family relations. The effect of conversion to Islam on children’s education and women’s right to equality in the upbringing of her children is severely affected and as said by the Honourable Justice Lee Swee Seng, “No legal system should deprive an infant child of a mother’s love or visit upon a mother the anguish and agony of such deep void, bereft of the warmth and wonder of the child of her womb”.

g) The lack of examination in the application and effects of laws and policies in Malaysia, on matters relating to marriage and family relations have created substantive inequality; as there is no De Facto equality between Muslim men and non-Muslim women – the institutions are not able to address the inequalities experienced by a mother placed in a situation equivalent to that of Indira Gandhi. The Malaysian dual legal system proves to be incompatible with the Convention. Despite being ratified, its implementation is severely hindered.

h) Article 2 of the Convention states that the principle of equality between men and women should be enshrined in national constitutions, legislation, public authorities, regulations, customs, and practices. It further sets out that appropriate measures are to be taken to eliminate the discrimination against women, which include modifying or abolishing legislation, if necessary. However, Article 121(A) of the Federal Constitution of Malaysia states that civil courts are excluded from hearing and having jurisdiction over matters that involve Muslim parties. This is an example of gaps and discrepancies in domestic legislation that make implementation of the Convention difficult. Despite attempts being made to introduce reforms under the Federal Constitution in Malaysia to address the issue of discrimination towards women in this context; especially in cases similar to the Indira case, no relevant policies and solutions have been implemented or adopted until to-date.

i) The Committee for the Convention (CEDAW) raised concerns that, Malaysia’s dual legal system has resulted in the continuing discrimination against women specifically within that of marriage and family relations. The Committee has further gone on to state that Article 5(b) of the Convention, which states that parties must take appropriate measures to ensure “[...] common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration", must be implemented and enforced in domestic legislations to ensure rights of women under the Convention.

j) The dual legal system in Malaysia tends to create a privilege for fathers whilst denying common responsibility of men and women in the upbringing and development of their children; not taking into account the interest of the children, which contravenes Article 5(b) of the Convention.

k) Women under these circumstances and mothers such as Indira Gandhi, have suffered from discrimination due to the dual legal system and the lack of clarity in domestic legislation in Malaysia. When there arise inconsistencies of two legal systems, how does one determine which legal system prevails? The major conflict arises in situations where one attempts enforcement of Civil Court Orders against Syariah Court Orders.

Conclusion

a) Many have criticised Malaysia’s government for being unable to locate Indira’s youngest daughter, whom she has not seen in 7 years and for being unable to arrest Patmanathan for contempt of court; i.e. his failure to return the child to Indira.

b) This is inexcusable, given the fact that the Malaysian government went so far as to table the Law Reform (Marriage and Divorce) Amendment Bill 2017 to resolve the “unilateral conversion of religion” issue in Malaysia. Unfortunately, this much-needed amendment to the Law Reform (Marriage and Divorce) Act 1976 was removed on the basis that, the proposed amendments were unconstitutional.

c) It is becoming increasingly apparent that, Malaysia needs to implement steps, measures, and provisions aimed at preventing conflict of laws within its domestic dual legal system. It is also apparent that Malaysia is in need of establishing regimes with regard to jurisdiction of the courts in matters concerning family relations and in particular, equality in upbringing of children to prevent violations of international human rights.