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The Malaysian Bar is disappointed that the Federal Court refused to decide on the issues of law in the S Shamala case, which presented the Court with a clear opportunity to resolve fundamental questions that affect the public interest.  By sidestepping these significant issues, the Federal Court failed to be decisive, and abdicated its role as the ultimate arbiter in disputes involving Constitutional questions and jurisdictional conflict.

Since our politicians have dithered, in not using the legislative process to eliminate the legal lacuna that exists, the Judiciary should have stepped in to do so, guided by their oath to uphold the Federal Constitution.  The Federal Court, in particular, ought to fulfil its responsibility to right an injustice, no matter how difficult or divisive the issues are.

Issues of conflicts of laws will continue to arise.  Courts, lacking guidance from the supreme tribunal of the land, may continue to take inconsistent approaches in the many unresolved cases.  Affected families remain caught in the jurisdictional divide and their pleas for a remedy or solution linger, unanswered.  A parent determined to gain custody of a child can unjustly exploit the loophole in the law, to the detriment of the child and the other parent.  More parents may feel that their only recourse is to flee the country, to prevent their children from being unilaterally and perpetually converted, and taken from them.
 
The Federal Court’s decision disregards the realities and dilemma faced by a parent in S Shamala’s situation.  It does not take into account the circumstances that caused her to leave the jurisdiction, which stemmed from her estranged husband’s initial and indefensible action in converting their children without her knowledge or consent.  Insistence on an exceptionally strict rule regarding contempt of court is unjust in this instance.  In exercising its discretion, the court ought to have given due consideration to the relevant factors and the interest of justice. 
 
As the courts have openly relinquished their responsibility, the Malaysian Bar urges the Government to resolve the current impasse swiftly through Parliamentary intervention.  Although the Cabinet issued a directive in April 2009 that children should not be converted from their original religion without the joint consent of both parents, this has remained a mere policy statement, without real effect.  The Malaysian Bar reiterates its call that the relevant legislation be amended immediately in order to fully implement this directive without further delay. 
 
This crucial first step will clarify an area of law that is currently unsatisfactory, reduce the anxiety felt by parents, children and families nationwide, and promote greater harmony in our multi-ethic and multi-religious society.

Lim Chee Wee
Vice-President
Malaysian Bar
 
17 November 2010

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