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Decision on Deepa case sets dicey precedent

Decision on Deepa case sets dicey precedent

 | February 14, 2016

A look at the Federal Court ruling from the humanitarian perspective.


The recent Federal Court ruling in the S Deepa custody case has been widely lauded as being a good first step towards resolving the issue of unilateral conversions and interfaith child custody cases.

“The Federal Court made a first good step, and it needs to take the next right step,” said former de facto law minister Zaid Ibrahim. MIC president S Subramaniam was effusive in his praise of the ruling as well, saying it had put to rest the problem of conflicting court orders. “The trap door is shut,” he said.

It does seem so on the face of it. The ruling made on the custody battle between Deepa and her ex-husband Izwan Abdullah, formerly N Viran, was a variation by a Federal Court panel to the Seremban High Court’s custody order last year. In this ruling, the previous order awarding custody of the two children to their mother was changed to one separating the children between the two parents.

According to the judgment read by the presiding judge, Raus Sharif, the decision took the children’s wishes into account, and was made after asking them whom they wanted to stay with.

It sounds like a victory for the civil court. Except that it isn’t.

The issue of interfaith child custody has been a hot-button issue in Malaysia for the past decade or so. Central to this issue is the conflict of jurisdiction between the civil and syariah courts and deciding which court has the authority to decide custody in such cases.

The precedent set so far has been greatly in favour of the syariah court. In such cases, a non-Muslim parent normally converts to Islam, unilaterally converting the children as well, and then decides to divorce the spouse, setting off a prolonged and ugly custody battle. Until now, such cases have ended in custody of the children being granted to the Muslim parent. This would explain the general sense of merriment surrounding the Deepa ruling, which took away the syariah court’s jurisdiction to declare an annulment of a civil marriage and to give a custody order.

But the ruling’s implications are less simple. As Penang Deputy Chief Minister II P Ramasamy has observed, the Federal Court’s ruling is surprisingly contradictory and makes no sense for Deepa, only partially allowing for the operation of the Seremban High Court order that gave full custody to her. “The court decision allowed Deepa’s Muslim convert ex-husband Izwan Abdullah, who abducted his son from her, to have custody of the boy. This does not make sense at all,” he said.

In other words, the ruling may have been right, but sets a legally dicey precedent since the syariah court’s decision clearly still carries some weight. It remains a step in the right direction, though. Shaky, but right nonetheless.

In the rhetoric currently roiling around the case, though, it should be noted that much more has been heard from the legal perspective than from that of the humanitarian point of view. So far, the only ones to speak on the welfare of the now separated children have been Hindraf Makkal Sakthi Chairman P Waythamoorthy and MCA’s Heng Seai Kie.

“The Federal Court arbitrarily varied the High Court judgment to give custody of the son to the converted father,” Waytha lamented in a telephone interview. “On what basis did the Federal Court do this? Just because the panel interviewed a frightened little boy privately? Rulings must be based on facts and law and whom the court believes.”

His words echoed Heng Seai Kie’s suggestion that it was possible that eight-year-old Mithran – now Nabil Izwan – had chosen his father only in the presence of “strangers with immense authority” and was coached or threatened into making the choice.

The idea that the boy was coerced isn’t hard to imagine. It is entirely possible that he did it out of fear of his father. We are, after all, talking about a man who snatched his children from his ex-wife and refused to return them even after the Seremban High Court had awarded custody to Deepa. Could it be that he decided to please his father rather than risk a recurrence?

The Federal Court, argues Waytha, should have given full custody to Deepa instead of splitting the family further “just because the father went off at a tangent.” He has a point. How do you justify the actions of a man who had his children converted without their mother’s knowledge, and when he lost a custody battle decided to kidnap one of them?

This is by no means a case of faith versus faith. Despite its religious trappings, the question of religion does not and should not arise. It’s a case of a woman versus a vengeful, sore loser of an ex-husband, nothing more.