COMMENT Courts that give decisions that end up in splitting children and families are not dispensing justice or fairness. They are merely engaging in exercises deemed to be popular or seeking compromise.

In the case of S Deepa's custody battle , the Federal Court decision can be metaphorically interpreted as "splitting the baby" or in a literal sense arriving at a compromise.

The court by giving the father, Izwan Abdullah, the custody of the son and the mother, the custody of the daughter, actually engaged in a crude form of dispensation of justice. A form of justice that even the famous Biblical King Solomon known for his wisdom as well as harshness would have frowned upon.

Before the birth of Christ, King Solomon, the son of King David and mother Bathesba, was a famous ruler whose empire stretched far and wide.

He was known for many of his great deeds and the gods supported him in his endeavours. King Solomon was also known for his wisdom and the ability to make judgments went it came to difficult matters.

Apparently, two women living in the same house each had a son around the same age and even looked alike. However, one night one of the mothers, without her realisation, smothered over the bay resulting in his death.

She cleverly removed her dead baby and put aside the other sleeping woman and took the baby that was alive and claimed that he was hers. However, the other woman realised that the dead boy was not hers and that the other woman had stolen hers.

Unable to resolve the matter, the two women with the baby went to King Solomon for judgment. Solomon instructed a sword to be brought and ordered his men to cut the baby into two so that two parts of the baby's body could shared between the two women.

However, the real mother wept and appealed to Solomon not to "split" the baby and urged him to give the baby to the "false" mother. Solomon was quick to realise who the real mother was and ordered the baby to be given back to her.

Going for compromise

We are not sure whether the story of King Solomon's famous dispensation of story was true or not, but this fable has been repeated throughout history to illustrate the wisdom of king's wisdom and fantastic judgment, that even modern-day judges are unable to do so.

King Solomon had not intention to split the baby, but was merely interested to ascertain the real mother of the child. He ordered the child to be "split" to expose the so-called mother who lied that the child was hers. In coming out with this drastic decision, King Solomon upheld the notion of justice that was not divisible!

However, the five-man bench of the Federal Court failed to make a wise judgment that was in accordance with the law and the spirit of natural justice.

The court by going for compromise ended up by "splitting" the two children of Deepa. Under the concept of natural justice and the existing law as provided in the Law Reform (Marriage and Divorce) Act of 1976, it was the right of the children to be brought up as Hindus, that is, in the religion of their parents (at the time of their marriage).

While King Solomon never intended to "cut" the baby into two parts, the Malaysian Federal Court actually ended up splitting the children. The court wanted a compromise without realising that its decision merely postponed and complicated custody battles in the country.

There is no point arguing about the supremacy of civil courts on matters of marriage and divorce involving non-Muslims when the court itself has taken a backseat to the dispensation of justice.

How can you make civil courts supreme when Izwan has basically "abducted" his son from the mother? What is more, the state Islamic agency in Negeri Sembilan condoned and abetted in the "abduction" of his son from the mother.

King Solomon was a harsh and sometimes described as cruel ruler, but there is consensus he was a just ruler. His judgment was flawless and took decisions that were brave and unpopular but to ensure justice prevailed in his kingdom.

But unfortunately, the apex court, the final arbiter of justice, has failed Malaysians in general and Deepa in particular. It went against tenets of natural justice by striking a compromise by not placing primacy on justice and fairness.

The greatest tragedy of Malaysia is that the entire court system has failed to extricate itself from the tainted larger social, cultural and political milieu.

The courts and judges have come to be seen by the public as mere appendages to self-seeking politicians and government bureaucracy that intend to promote the notion of Islamic hegemony.

We only wish that we have judges who can make wise and learned judgments and adhere to the spirit of upholding justice and fairness.

P RAMASAMY is Deputy Chief Minister II of Penang and the assemblyperson for Perai.