Malaysia’s highest court (the Federal Court) abdicated its duty to exercise sound and courageous moral judgment when it relied on technicality and rejected an application by a Hindu mother (Shamala) to the Court to rule against her husband’s unilateral conversion of her children to Islam. According to the Court, Shamala does not have the right to be heard in court because a contempt proceeding was initiated against her as she had fled to Australia with the two children, despite the court earlier ruling to grant joint custody to Shamala and her husband.
I find it ironic, to read one of the judges “noted that Shamala had gained an unfair advantage over her husband when she breached a court order allowing the father the right to visit the two children.” He added, “The Federal Court said it cannot adopt a “fugitive doctrine of heads I win, tails you lose” in deciding the basic rights for either parent.”
The words (highlighted in red) are most appropriate, except that they are applied to the wrong party.
Truth be told, the feeling among non-Muslims is that it is futile for them to seek justice and redress in court whenever there is a conflict between a non-Muslim and a Muslim. Judging from the spate of court judgments in recent years, there is a perception of Muslims having an unfair advantage since the panel hearing such cases invariably comprises a majority of Muslim judges who display reluctance to rule against their co-religionists, regardless of the merits of the case. Perhaps, they anticipate seeing their Creator soon and it is therefore expedient to acquire additional religious merits (pahala) by ruling in favour of Islam. It is really the case that non-Muslims are the one who cry out in despair, “heads you win, tail I lose”.
Indeed, Shamala’s flight to Australia with her children epitomizes the non-Muslims’ complete loss of confidence in the courts’ willingness to safeguard the legitimate rights of non-Muslims.
Note: Response from Bar Council added 17/11/2010. See press statement below.
Top court throws out Hindu mother’s conversion challenge LINK
MALAYSIA INSIDER @ 04:06:23 PM 12-11-2010
By Debra Chong November 12, 2010
PUTRAJAYA, Nov 12 — The country’s top court today unanimously dismissed a Hindu mother’s bid to raise her two young children in the religion they grew up with, after being converted to Islam by her estranged Hindu-turned-Muslim husband eight years ago.
Today’s 5-0 ruling effectively deals a hard blow to the battle to end one-sided religious conversions, which has caused a deep rift in this multicultural and secular nation but where Islam is recognised as the official creed.
The panel of five of the nation’s most senior judges, led by Chief Justice Tun Zaki Azmi, ruled that S. Shamala must return to the country if she wants the court’s protection.
The 38-year-old mother fled the country with her two sons in 2004. Their current location is unknown.
Zaki, in his grounds of judgment, noted that Shamala had gained an unfair advantage over her husband when she breached a court order allowing the father the right to visit the two children.
“By doing so, she had unlawfully had custody of the children and even if the court were to examine the children now as to who would they chose to live with, most likely they will choose to live with the wife,” the top judge said.
The Federal Court said it cannot adopt a “fugitive doctrine of heads I win, tails you lose” in deciding the basic rights for either parent.
“Parties must have equal footing and not unfair representation,” Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum said in his judgment.
The court noted that Shamala’s estranged husband, anaesthetist Dr Muhammad Ridwan Mogarajah (alias Jeyaganesh C. Mogarajah), also had rights as the father but had been denied access to his children for the past six years.
Dr Muhammad Ridwan was not present in court for the decision today.
Both parents are in a bitter fight to gain custody over Saktiwaran and Theivaswaran, now aged 11 and nine respectively, and to be allowed to raise them in their respective religions.
But Malanjum departed from the judgment of his fellow judges on one point — to allow the case back in court if Shamala returns to the country together with the children within the next three months from today.
“I am of the view that since there is no undue serious prejudice I am therefore inclined to rule that the interest of justice is best served by making an order that the wife and the children are to appear before this court within three months from today failing which this reference will be deemed dismissed with costs,” he ruled.
The other four judges had ruled to have Shamala’s challenge thrown out with immediate effect, without hearing the five constitutional questions she had raised.
The five questions are as follows:
1. Whether section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires of Article 12 (4) of the Federal Constitution [specifically concerning the right to determine the religion of the children under the age of 18 shall be determined by the parent or guardian] and Article 8 regarding equality rights?
2. Whether the same section in state law is inconsistent with federal law, namely section 5(1) of the Guardianship of Infants Act 1961, and is therefore invalid?
3. Regarding Article 121 (1A) of the Federal Constitution, where a custody order of children is made which court, between the Syariah Court or the High Court, is the higher authority?
4. When there is conversion of children of a civil marriage to Islam by one parent without the consent of the other, are the rights of remedy for the non-Muslim parent vested in the High Court?
5. Does the Syariah Court have jurisdiction to determine the validity of conversion of a minor into Islam once it had been registered by the Registrar of Muallafs?
The Federal Territory Islamic Council was also a party to the suit, and had sided with the father for his rights as a Muslim to be upheld.
Shamala’s lawyers were highly critical of today’s decision.
Former Bar Council chief Datuk Ambiga Sreenevasan, who is on Shamala’s team, said the court’s answers to the questions were very important not only for the mother but for others trapped in a similar situation and slammed the panel for dodging them.
“If Shamala can’t come to the highest court of the land [for justice], where can she go?” Ambiga’s colleague raised in an impromptu news conference in the Palace of Justice here after the ruling.
“By leaving the country,” suggested women’s rights activist Meera Samanther, who is also a lawyer.
Samanther said perhaps Shamala had foreseen today’s decision and decided to take her chances and run.
But lawyers for Dr Muhammad Ridwan and the Islamic council welcomed the top court’s unanimous decision.
“If she wants justice, she has to come back with the children. She can’t ask for justice from out of the country, especially in a case where the children have been deprived of their father for the past six years,” Muralee Menon, who represented the father, told reporters.
“The decision today was not one bordering on religion but purely the fundamental right of the parent,” he added.
The Islamic body’s lawyer, Azmi Rais, told reporters Shamala’s suit amounted to trying to seek a judgment in her favour “by remote” and that was not fair.
“The court’s decision was correct,” he added.
Article added on 14 Nov 2010
Malaysiakini – Nov 14, 10 4:55pm
Judges must uphold justice regardless of faith LINK
Personal religious sentiments are colouring decisions made in the civil court said a concerned A Vaithilingam.
He is the past president of the Malaysian Consultative Council on Buddhism, Christianity, Hinduism, Sikhism & Taoism (MCCBCHST).
Vaithilingam added there was a tendency for judges who are Muslim, to feel that they have a duty to protect their faith.
“There appears to be a pattern in this direction. As I understand Islam, after all my years in religious organisations, judges must be unbiased. This is similar to all other religious teachings.
“When Muslim judges and non-Muslim judges give different judgments in matters involving Islamic tenets, it is confusing for lay people,” said Vaithilingam who was also the advisor to the Malaysian Hindu Sangam.
“For example, when the civil High Court judge, in giving joint custody of the two children to husband Dr M Jeyagandesh and wife, Shamala Sathiaseelan but ordered her not to expose her two children to her own religion of Hinduism, the judge did not cite any civil law authority for such a decision.”
Conversion without consent
He explained that when the government Islamic religious authority had converted her infant children to Islam without her consent, and the High Court refused to intervene telling her instead to submit to that religious department for assistance, it was the last straw for her. ”If she committed contempt of court by leaving the country with her children, the above can be considered strong mitigating factors.” He said he believed the husband who deserted her was being given special consideration because he was a Muslim. “Both the High Court and the government religious authorities did not give recognition to her equal rights as a mother and a woman.” Shamala had appealed to the Court of Appeal who referred the matter to the Federal Court.
“She hoped she would get justice. But the Federal Court has shut her out completely. If she was in contempt of court, that offence must be considered separately. It did not mean that she should be denied relief in the substantive matters she complained about,” added Vaithilingam.
Conversion issues not addressed
The MCA was also dismayed on the unanimous decision by the apex court in allowing Jeyagandesh’s application for a preliminary objection, that Shamala does not have the right to be heard in court because a contempt proceeding was initiated against her.
This was because she had fled to Australia with the two children, after the court had earlier granted Shamala and Jeyagandesh joint custody.
While the party’s deputy publicity chief Loh Seng Kok understood the court’s constraints considering that Shamala had fled the country, it was still a shame that the court did not address basic conversion issues.
The five-member panel was led by Chief Justice Zaki Azmi.
Press Release: Federal Court must fulfil role as ultimate arbiter of Constitutional issues – Added 17/11/2010
The Malaysian Bar is disappointed that the Federal Court refused to decide on the issues of law in the S Shamala case, which presented the Court with a clear opportunity to resolve fundamental questions that affect the public interest. By sidestepping these significant issues, the Federal Court failed to be decisive, and abdicated its role as the ultimate arbiter in disputes involving Constitutional questions and jurisdictional conflict.
Since our politicians have dithered, in not using the legislative process to eliminate the legal lacuna that exists, the Judiciary should have stepped in to do so, guided by their oath to uphold the Federal Constitution. The Federal Court, in particular, ought to fulfil its responsibility to right an injustice, no matter how difficult or divisive the issues are.
Issues of conflicts of laws will continue to arise. Courts, lacking guidance from the supreme tribunal of the land, may continue to take inconsistent approaches in the many unresolved cases. Affected families remain caught in the jurisdictional divide and their pleas for a remedy or solution linger, unanswered. A parent determined to gain custody of a child can unjustly exploit the loophole in the law, to the detriment of the child and the other parent. More parents may feel that their only recourse is to flee the country, to prevent their children from being unilaterally and perpetually converted, and taken from them.
The Federal Court’s decision disregards the realities and dilemma faced by a parent in S Shamala’s situation. It does not take into account the circumstances that caused her to leave the jurisdiction, which stemmed from her estranged husband’s initial and indefensible action in converting their children without her knowledge or consent. Insistence on an exceptionally strict rule regarding contempt of court is unjust in this instance. In exercising its discretion, the court ought to have given due consideration to the relevant factors and the interest of justice.
As the courts have openly relinquished their responsibility, the Malaysian Bar urges the Government to resolve the current impasse swiftly through Parliamentary intervention. Although the Cabinet issued a directive in April 2009 that children should not be converted from their original religion without the joint consent of both parents, this has remained a mere policy statement, without real effect. The Malaysian Bar reiterates its call that the relevant legislation be amended immediately in order to fully implement this directive without further delay.
This crucial first step will clarify an area of law that is currently unsatisfactory, reduce the anxiety felt by parents, children and families nationwide, and promote greater harmony in our multi-ethic and multi-religious society.
Lim Chee Wee