AG able to step in on interfaith custody rows, lawyers say

KUALA LUMPUR, June 27 — The Attorney-General (AG) may take the unusual step of interceding in two interfaith child custody disputes on the grounds of constitutional issues, according to lawyers who also expect his bid to succeed.

Civil liberties lawyer Syahredzan Johan said according to Article 145(4) of the Federal Constitution, the government’s top lawyer has the right of audience in any court, including the Shariah court.  

“Intervening in proceedings, you need to establish interest. Very easy for the AG to satisfy that,” Syahredzan told the Malay Mail Online today.

“He would probably seek to show how the conflict is causing problems for the police, so that is why he is stepping in,” he said, adding that the AG would likely succeed.

Tan Sri Abdul Gani Patail said in a statement yesterday that the Attorney-General’s Chambers was applying to intervene in two child custody cases in Seremban and Ipoh involving Muslim converts, and that the cases may be referred to the Federal Court for a final decision on the contentious issue.

He also said his agency would seek to stay both civil and Shariah court orders issued to the police in the Perak and Negri Sembilan cases respectively, where the High Courts had granted custody to the Hindu mothers, while the Shariah courts had given custody to the Muslim convert fathers.

Gani said the two disputes have raised constitutional questions about the powers of the Shariah and civil courts, particularly Article 121(1A) of the Federal Constitution, which states that the High Courts shall have no jurisdiction in Shariah court matters.  

Inspector-General of Police (IGP) Tan Sri Khalid Abu Bakar has adamantly refused to act on the High Court orders in interfaith child custody disputes, claiming that the police were “sandwiched” between the civil and Shariah legal systems.

Andrew Khoo, co-chairman of the Bar Council’s human rights committee, similarly said that Gani could apply to intervene on the grounds of constitutional questions and concurred that the AG will be successful.

“His powers under Article 145(3) are very wide. I don’t think he will apply to stay the Shariah Court order as the civil court order is more critical,” Khoo told the Malay Mail Online.

Article 145(3) of the Federal Constitution states that the AG shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, except before a Shariah court, native court or court martial.

Syarie lawyer Nizam Bashir said the AG could apply to the High Court that could then order a stay of the Shariah court order.

“In appropriate circumstances, the High Court can grant a stay. One of those circumstances that comes to mind is when there are matters affecting the constitution. This involves the question of Article 121(1A),” Nizam told the Malay Mail Online.

He added that Gani was doing the right thing by attempting to expedite the cases to the country’s highest court.

In the Perak case, the Shariah court granted Mohd Ridzuan Abdullah, a Muslim convert, custody of his three children in 2009 after he converted them to Islam without their mother’s consent.

The Ipoh High Court overturned this decision and granted full custody to the children’s Hindu mother, Indira Gandhi, in 2010. But Ridzuan has refused to surrender the youngest child, Prasana Diksa, who was only 11 months old when he took her away.

Last year, the civil court also annulled the conversion certificates of the three children, declaring it unconstitutional to force a minor to embrace a different faith without the consent of both parents.

The Ipoh High Court issued an order on June 12 to the police, instructing them to submit a progress report on the first week of every month until they succeed in returning the child to her mother.

In the Seremban case, Viran Nagapan, who is now Izwan Abdullah since his conversion to Islam, took off with his six-year-old son Mithran despite losing custody to the Hindu mother Deepa Subramaniam in the Seremban High Court on April 7.

Izwan, who had last year won a custody order from the Shariah court after converting his two children aged six and nine to Islam without informing Deepa, has yet to return the son.

The Seremban High Court granted Deepa a recovery order last month, directing the police to return the boy to her.