Posts
(updated May 5, 2016)
by Jeremy
D. Morley
Malaysia is not a party to the Hague
Abduction Convention. Malaysia has refused to adopt the treaty, on the ground
that it would purportedly contradict Shariah law, since that law bases child
custody decisions to a substantial extent on religious, age and gender
factors. Given that the Convention has now been signed by more than 90
countries, including some Islamic countries, the failure of a country to join
the community of nations in signing and implementing the treaty is a red flag
that the country is unlikely to return abducted children promptly, if at all.
Further, there are no international or bilateral treaties in force between
Malaysia and the United States dealing with international parental child
abduction.
In Malaysia child custody cases between
Muslims are conducted before Shariah courts. Other cases are conducted before
civil courts. However, even in the Malaysian civil courts foreign custody
orders are not binding and such courts must review the best interests of the
child in any custody case in which a foreign custody order has already been
issued. The leading case is Mahabir
Prasad v Mahabir Prasad, [1981] 2 MLJ 326, in which the Federal Court ruled
that the trial court had been committed error by applying the terms of an
Indian custody order without conducting a full evaluation of the children’s
best interests The Shariah courts apply Shariah law in custody cases and
foreign non-religious court orders have no role in that process.
The sharp split between the two judicial
systems, the Shariah rules that favor Muslims, and uncertain rules and
practices as to whether a child may be unilaterally converted to Islam, have
provided non-Muslim fathers in Malaysia with a devious ploy to procure sole
custody of their children. They convert to Islam, then purport to convert their
children to Islam and then petition the Shariah courts for sole custody.
Article 121(1A) of the Malaysian Federal Constitution provides that the
Civil High Courts in Malaysia have no jurisdiction in respect of any matter
that falls within the jurisdiction of the Shariah Courts. This practice has
created enormous controversies in Malaysia which have still not been fully
resolved.
The case of Indira Gandhi v Mohd Ridzuan Abdullah, concerning a Hindu family in Malaysia, has now been pending for
about seven years. In that case, the father converted himself and his children
to Islam, unilaterally removed the youngest child from the family home, and in
2009 obtained an order of sole custody in his favor from a Shariah court. The
mother went to the civil court and ultimately, in 2010, obtained an order
giving custody to her. The father refused to follow the civil order. Litigation
continued and in 2013 the Malaysian High Court at Ipoh declared the
unilateral conversion of a child to be unconstitutional. In the same
month, however, the Islamic Affairs Department in Seremban, Malaysia declared
that the Shariah court had acted properly in granting sole custody to a father
who had converted himself and his two Hindu children secretly to Islam. The
Court of Appeal then set aside a mandamus order issued by the Ipoh High Court
compelling the Inspector-General of Police to arrest the father, and for
him to find and return the child to her mother. In April 2016 the Federal Court
ordered the national police chief to arrest the father for contempt of court
over his refusal to hand custody of the child. However, the presiding judge said
the police chief’s inaction on the recovery order was excusable as there were
conflicting custody orders from the Shariah and civil courts. Meanwhile the
child remains with the father.
