Waytha: Federal Constitution cannot go against itself

The ambiguity in Article 121 (1) (A) and the meaning of “parent” under Article 12(4) in the Federal Constitution must either be removed by Parliament or struck down by the Court.

KUALA LUMPUR: Pure legal questions on the true meaning and intentions of the amended Article 121 (1) (A) and the meaning of “parent” under Article 12(4) of the Federal Constitution has been given a biased and distorted interpretation (in Court), warned Hindraf Makkal Sakthi in a take on the recent M. Indira Gandhi case. “Since the Court has failed to act, Parliament must come in and remove the ambiguity which was being interpreted in a distorted manner by the Court. The total abdication of authority, jurisdiction and power by the Judiciary is pathetic. There must be equal rights, as expressed by the intention of the framers of the Federal Constitution, under the said provisions.”

“This is not an issue about religion or religious superiority but about strong and stable government. This is a pertinent question on whether the government would accept constant abuse of the vague provisions of the laws of the land and the constant abdication of jurisdiction by Judges. The government must accommodate the concept of a just society failing which it is nothing but a failed government.”

Hindraf Chief P. Waythamoorthy added that the government ought to also push forward its proposed amendments to the Law Reform (Marriage and Divorce) Act 1976 and the respective state Islamic Family Law Acts. “This would ensure that issues like child support and custody would be determined by the Court in which the marriage had been registered in, regardless if one spouse embraces another religion later on.”

Waytha, a human rights advocate and senior lawyer in private practice, reiterated that the said ambiguity must be removed from the Federal Constitution. “The Federal Constitution cannot go against itself or be seen as going against itself.”

“A Cabinet directive was also issued in 2009 to prevent unilateral conversion of minors.”

The reality, said Waytha, is that Syariah is an inferior law – the Federal Constitution being the superior law to which it is subject to – confined to personal and family matters. “We refer to the Parliamentary statement by then Prime Minister Mahathir Mohammad that nothing can supersede the fundamental human rights enshrined in the Federal Constitution.”

The ambiguity can be struck down by the Federal Court, sitting as the Constitutional Court, but instead the Hindraf Chief has found to his dismay that the Court has abdicated its responsibility on the matter. “The nearly 50 per cent non-Muslim population has no confidence in the Judiciary when it comes to the question of the conversion of minors.”

“The Judiciary has clearly been unable to ensure that the most fundamental issues of minorities and morality should be addressed as issues of pure law and principle and not political influence, institutional power, defective or unconstitutional legislatives.”

By their abdication of powers, said Waytha, the Judiciary has allowed great anguish to families and for humanity to be destroyed.

The Judiciary was meant as the last bastion on the hybrid of legal and moral reasoning, reminded Waytha. “It has constantly failed to take bold steps to put to sleep these similar conversion issues to ensure the fundamental liberties and rights protected in the Federal Constitution are safeguarded and forever inures to the Malaysian people as a whole, for their benefit.”