CRC Talks: The Child in the Malaysian Criminal Justice System

The Bar Council Child Rights Committee (“CRC”) is proud to announce the launch of the “CRC Talks” series. In these talks/workshops, we aim to promote dialogue, raise awareness, and educate on various issues that affect child rights in Malaysia.

CRC Talks are open to Members of the Bar as well as the public.

More than 20 years have passed since Malaysia acceded to the Convention on the Rights of the Child (“Convention”).  However, in the criminal justice system, it is often the case that the voice of the child in conflict with the law is lost in the cacophony of adult voices. Hence, although Malaysia has taken steps to comply with aspects of the Convention, there are gaps between Malaysia’s obligations under the Convention and the actual workings of the criminal justice system, as far as the child in conflict with the law is concerned.

This is not surprising, considering the fact that while there are general expressions of the Convention, States Parties have a level of discretion to decide on the exact nature and content of the domestic measures for dealing with children in conflict with the law. Further, given Malaysia’s reservations to a number of the Convention’s provisions, and the existing punitive culture, a child rights-based approach in the criminal justice system merits analysis.

This workshop will explore the development of theoretical foundations and, where appropriate, will involve participant-driven activity. This unique workshop aims to provide participants with an understanding of:

(1) the underlying philosophical and theoretical approaches in dealing with the rights of children in conflict with the law;
(2) the issues and challenges in implementing the Convention in Malaysia;
(3) the global trends and issues involving children in conflict with the law; and
(4) the approaches and challenges in interviewing children.
About the Speaker
Paul Linus Andrews is the Head of the Centre for Commercial Law and Justice, Sunway University. His areas of interest are fundamental liberties and the criminal justice system, with a particular emphasis on the impact of the criminal justice system on children in Malaysia. His publications include Halsbury’s Laws of Malaysia on
Administrative Law (2002), Equity and Trusts in Malaysia (Sweet and Maxwell, 2005) and Law for Business (Sweet and Maxwell, 2014). Paul is an EXCO member of the Malaysia Crime Prevention Foundation (Selangor); a member of the Bar Council Constitutional Law Committee; and a Fellow of the Higher Education Academy, United Kingdom. Paul is presently working towards the completion of a PhD degree in law at Lancaster University, United Kingdom. His
area of focus is the rights of the child in conflict with the law and diversion.
Please direct all correspondence (including completed registration forms and proof of payment) and enquiries to:
Florence Laway
(03-2050 2104; florence@malaysianbar.org.my)
Najwa Hamid
(03-2050 2102; najwa@malaysianbar.org.my)
Anusha Gopala Krishnan
(03-2050 2097; anusha@malaysianbar.org.my)
Fax: 03-2032 2043

Malaysia tops in South-East Asia for online child pornography

Source: The Star

KUALA LUMPUR: Malaysia has the highest number of IP addresses uploading and downloading photographs and visuals of child pornography in South-East Asia, authorities have said.

The number of children falling prey to perpetrators whom they befriended online is also reportedly increasing fast.

Many Malaysian parents let their children use handphones without monitoring them, and more than 60% of children spend time in online chatrooms on the Internet on a daily basis.

Data shows that close to 20,000 IP addresses in Malaysia upload and download photographs and visuals of child pornography and that the country ranks top in South-East Asia in this regard.

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PM: Putrajaya may ban unilateral child conversions

Source: Malay Mail Online

Najib Razak giving a press conference during UMNO Supreme Council meeting at UMNO Headquarters, Menara Dato’ Onn, Putra World Trade Centre (PWTC) on January 30 2018. Via Malay Mail Online

KUALA LUMPUR, Jan 30 — The government will consider re-introducing a legal amendment to ban unilateral child conversion to Islam, Prime Minister Datuk Seri Najib Razak said today after a landmark court ruling in M. Indira Gandhi’s case.

The prime minister was referring to Section 88A of the Law Reform (Marriage and Divorce) Act that the government had withdrawn before passing amendments to the law last August.

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Kes Indira: Mahkamah sivil boleh tafsir isu perundangan Islam

Sumber: Malay Mail Online

KUALA LUMPUR, 30 Jan — Perlembagaan Persekutuan tidak menghalang mahkamah sivil daripada mentafsir atau menilai isu berkaitan undang-undang Islam.

Dalam penghakiman bertulis kes M Indira Gandhi, lima ahli panel mahkamah persekutuan berkata klausa 1A bawah Seksyen 121 Perlembagaan tidak mengurangkan kuasa mahkamah sivil berkaitan perkara dalam bidang kuasa mahkamah syariah.

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Answered: Who has the power in conversion cases — Gurdial Singh Nijar

Source: The Sun Online

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

ONCE ever so rarely emerges a court decision that will have a reverberating effect far beyond its own facts and parties to the case.

I speak of yesterday’s decision of the Federal Court in the Indira Gandhi case.

Before the Federal Court were two important questions: (1) who has authority to decide on matters of conversion of religion – the syariah courts or the civil courts where an issue arises involving its constitutional or statutory interpretation?

(2) In such conversion cases can one parent (without the consent of the other) have the final say? Read more

Indira Gandhi’s case shows civil law trumps shariah law

Source: The Malaysian Insight

THE landmark decision in the M. Indira Gandhi case sets a precedent that civil law prevails over shariah law, lawyers and civil groups said today.

The Federal Court yesterday ruled that the unilateral conversion of Indira’s three children to Islam was null and void, requiring the consent of both parents and the constitutional word “parent” was a case of being lost in translation.

Lawyers for Liberty’s Eric Paulsen said the ruling prevents cases which takes into consideration both civil and shariah law to bypass the common law.

“The judgment is extremely significant, as it conclusively stated that unilateral conversion is no longer valid.

“Therefore, a newly converted spouse can no longer circumvent civil law and go through the shariah system in order to unfairly gain custody of the children,” he told The Malaysian Insight.

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‘Indira judgment welcomed, but authorities must follow through’

Source: Free Malaysia Today

PETALING JAYA: A human rights NGO today hailed a landmark ruling which set aside the unilateral conversion of three children to Islam, expressing hope however that the authorities would follow through.

Lawyers for Liberty executive director Eric Paulsen said the Federal Court’s ruling in M Indira Gandhi’s case was long overdue.

He said he was happy that the matter had been resolved “in the favour of justice”, adding that the ruling shows that Muslims and non-Muslims are equal under the law.

“But failure of authorities to follow through on the decision will impact the confidence in court judgments.

“It could lead to a collapse of the system which could see people taking matters into their own hands,” he told FMT.

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Other cases of unilateral child conversion

Source: Malay Mail Online

KUALA LUMPUR, Jan 30 ― While M. Indira Gandhi won her case at the Federal Court against the conversion of her three children to Islam without her consent, a few other women were not so fortunate.

The apex court’s decision to nullify the unilateral conversion of Indira’s children ― which was done by her Muslim convert ex-husband who also abducted their youngest child nine years ago at the age of 11 months ― was the opposite of a previous verdict in another case of unilateral child conversion ― R. Subashini’s case.

The Federal Court yesterday ruled that according to the Federal Constitution, the consent of both parents is needed to convert a minor, while another apex court panel in Subashini’s case had interpreted the Constitution to only require the permission of one parent.

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We are Hindu, Indira’s children declare confidently after Muslim conversion quashed

Source: Malay Mail Online

(From left) Karan Dinish, Tevi Darsiny and their mother M. Indira Gandhi are seen here in a photo taken during Deepavali 2017. ― Picture courtesy of M. Indira Gandhi
via Malay Mail Online

KUALA LUMPUR, Jan 30 ― M. Indira Gandhi’s two elder children can now proudly declare their Hindu identity, after the Federal Court yesterday nullified their conversion to Islam that was done without their Hindu mother’s consent.

Tevi Darsiny, the eldest child now aged 20, said she felt “overwhelmed” when
she heard about the Federal Court ruling voiding her conversion by her Muslim convert father, Muhammad Riduan Abdullah.

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Federal Court judgment on Indira Gandhi case

Source: The Malaysian Insight

Background facts

The appellant, Indira Gandhi Mutho and the respondent in appeal no. 19, Patmanathan Krishnan were married on April 10, 1993.

The marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 (‘the LRA’). There were three children of the marriage, Tevi Darsiny, aged 12, Karan Dinish, aged 11 and the youngest, Prasana Diksa, who was 11 months old (at the time of filing of the appellant’s application for judicial review dated 9 June 2009).

On March 11, 2009, the 6th respondent converted to Islam. At the time of the 6th respondent’s conversion, the two elder children were residing with the appellant while the youngest child was with the 6th Respondent.

Sometime in April 2009, the appellant received documents from the 6th respondent showing that her three children had been converted to Islam on April 2, 2009 and that the Pengarah Jabatan Agama Islam Perak had issued three certificates of conversion to Islam on her three children.

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