(Malaysiakini) The Federal Court missed a golden opportunity to answer the long-standing issue of unilateral conversion of children by a parent thrown up by the S Shamala and Dr M Jeyagandesh case.
A lot of child conversion cases were depending on this case to set a precedent to answer this thorny question.
This follows a 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.
A lot of child conversion cases were depending on this case to set a precedent to answer this thorny question.
This follows a 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.
The five-member panel led by Chief Justice Zaki Azmi (left) allowed the preliminary objection.
While Chief Judge of Sabah and Sarawak Justice Richard Malanjum allowed Shamala a period of three months for her and her children to return home, the other judges did not.
The other judges on the panel are President of the Court of Appeal Justice Alauddin Md Sheriff, Chief Judge of Malaya Arifin Zakaria and Federal Court judge Zulkefli Ahmad Makinuddin.
Five questions posed for determination
The Court of Appeal had agreed that the following five questions should be posed to the Federal Court:
1. Whether Section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires (beyond the powers) 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 for 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 remedies 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 (Registrar for newly-converted Muslims)?
Ambiga: M'sians want to see questions answered
Lead counsel for Shamala, Dr Cyrus Das, said the apex court missed a golden opportunity to clarify these key questions.
“We may have to wait for another Shamala case and all parties concerned must be in the country,” he said.
Former Bar Council chairperson Ambiga Sreenevasam (right), another counsel for Shamala, said the judgment today avoided answering these questions.
“Malaysians want to see the questions answered,” she said.
Ambiga said as a result, this case may encourage more unilateral conversion of children.
The five-member panel led by Chief Justice Zaki Azmi (left) allowed the preliminary objection.
While Chief Judge of Sabah and Sarawak Justice Richard Malanjum allowed Shamala a period of three months for her and her children to return home, the other judges did not.
The other judges on the panel are President of the Court of Appeal Justice Alauddin Md Sheriff, Chief Judge of Malaya Arifin Zakaria and Federal Court judge Zulkefli Ahmad Makinuddin.
Five questions posed for determination
The Court of Appeal had agreed that the following five questions should be posed to the Federal Court:
1. Whether Section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires (beyond the powers) 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 for 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 remedies 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 (Registrar for newly-converted Muslims)?
Ambiga: M'sians want to see questions answered
Lead counsel for Shamala, Dr Cyrus Das, said the apex court missed a golden opportunity to clarify these key questions.
“We may have to wait for another Shamala case and all parties concerned must be in the country,” he said.Former Bar Council chairperson Ambiga Sreenevasam (right), another counsel for Shamala, said the judgment today avoided answering these questions.
“Malaysians want to see the questions answered,” she said.
Ambiga said as a result, this case may encourage more unilateral conversion of children.
Another lawyer representing Shamala, David Matthews, said the court's decision today did not address the rights of the children who had been converted which is a prevalent and important issue and which should have been heard.
Womens Aid Organisation president Meera Samanther, another lawyer for Shamala, said that she feared such a decision may encourage parents who are plagued with similar problems or situation to take similar action (run away abroad).
She said although her actions may never be condoned, what choice has she got if the court so chose not to answer the questions.
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