COMMENT BY YB PROF DR P.RAMASAMY, DEPUTY CHIEF MINISTER II, PENANG
Respect the Constitution to avert the Hobbesian world of chaos and disorder
Single mother Loh Siew Hong was able to reunite with a her children following a successful habeas corpus application. Before this, she was awarded an interim custody in 2019 and a full custody in 2021.
Even with these court orders sufficient to gain custody, she had to seek an habeas corpus application. She went through hell to gain custody of her underaged children.
Even with the law on her side, she had to face the wrath of certain conservative religious forces in gaining custody. Given the nature of zero sum game politics, her court victory was seen as the loss of some segments and gain of others.
The fact that children were unilaterally converted by her estranged husband Nagahswaran Muniandy made it all the more difficult first to locate her children, lodge police reports and ultimately seek court intervention.
Although the unilateral conversion was unconstitutional, but nonetheless some parties held that it was valid in states like Perlis and others.
A few years back, single mother Indira Gandhi fought a difficult battle to gain custody of her underaged daughter. The daughter was converted by her estranged husband without even seeking her consent.
The court process was long and arduous, but she finally succeeded when the federal court declared in a land mark decision to invalidate unilateral conversion for children below the age of 18 years.
Indira won in the court but lost out in not gaining custody as former husband and daughter could not be traced despite numerous police reports. Indira might not have succeeded in gaining custody of her child, but the federal court decision against unilateral conversions, proved to be advantageous to other parents particularly single parents to claim custody of their children.
In this respect, the long years of struggle by Indira was not in vain. Her case certainly was crucial for Loh to gain custody of her children.
It is so unfortunate that simple family quarrels between husbands and wives have become very political, racial and religious. Conversion into another religion has been used by one parent to circumvent or prevent the other parent from gaining custody of the child or children.
In the ethnically and religiously charged atmosphere as in Malaysia, the matter of conversion is not about fundamental rights but about politics. Despite the constitutional provision on conversion and child custody, there are states in the country relying on state laws as a means to unilateral conversions.
In the case of Loh, the religious authorities in Perlis argued that since the state enactment provided for unilateral conversion by one parent, it should be accepted.
Such statements are not only ultra vires the Constitution but highly one sided and unfair to the affected spouse and her children.
The Constitution is the supreme law of the land.
Any attempts to subvert the Constitution in the name of religion or ethnicity cannot be accepted by Malaysians.
PAS leaders known for their cheap publicity are even talking about the laws that are higher than the Constitution.
Recently, PAS president Hadi Awang made some oblique references to a higher law that might supersede the Constitution. Perhaps he needs to elaborate on this matter further.
Whether it is about the conversion matter or some others, there can be no other law that supersedes the Constitution.
The courts are the guardians to interpret and give meaning to the Constitution. Those who intend to subvert the Constitution might be advised to think of a society in the absence of laws or laws meant to satisfy the narrow sectarian cravings of some irresponsible segments.
We don’t need the Leviathan to put end to the Hobbesian world of chaos, disorder and nightmare.
We just need to respect the Constitution.