By Debra Chong
PUTRAJAYA, May 3 — Hindu mother S. Shamala's efforts to seek a Federal Court ruling to raise her two young children in that religion rather than follow her estranged Muslim convert husband could be the last such case depending on how Malaysia's highest court decides.
The bank clerk’s family was in court today and appeared disappointed at the decision by the panel of five of the nation’s most senior judges to put off the hearing after it was suggested that the outcome of the proceeding may be an “exercise in futility”.
“We’ve been emotionally traumatised. It’s taken a toll on us, physically, emotionally, mentally,” Shamala’s younger brother, Dr S. Sharimalan, 30, told reporters here today.
“We’ve not seen my sister and nephews for the longest time ever,” he said.
His mother added tearfully that it had been nearly six years since she last laid eyes on 38-year-old Shamala and her grandchildren and just wanted to see justice done.
“In this case, is it wrong for a mother to fight for the rights of her children? Is it a crime?” she quizzed.
“I’m a mother. I want my daughter and my daughter wants her children. That’s all,” she added brokenly.
Dr Sharimalan who continued on behalf of his parents, both who declined to give their names, added that communication from Shamala was few and far in-between.
“God knows where she is now. We’ve only communicated with her occasionally through emails and a few phone calls,” he said, and noted that his eldest sibling lived in constant fear and confusion over the conflicting orders issued by the civil High Court and the Syariah High Court.
“She’s not revealed where she is. Her fear is we’ll get harassed,” added the Alor Setar native.
“How many cases of Shamala’s are there? We just want a solution so no more cases like this will happen,” he stressed.
Shamala’s father, who stood stoically beside his wife, added that he hoped the Federal Court would go ahead with the hearing and decide on the five questions that had been submitted.
The five questions raised 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?
Chief Justice Tun Zaki Azmi who chaired the five-man bench had earlier noted an objection from Shamala’s anaesthetist husband, Dr Muhammad Ridwan Mogarajah (alias Jeyaganesh C. Mogarajah), that if the hearing was allowed, whatever decision arrived at may be an exercise in futility because the two children were believed to have left the country with their mother and therefore beyond the reach of the court.
Dr Muhammad Ridwan wanted mother and sons, believed to be in Australia, back in Malaysia before hearing the highly-charged conflict on religious conversion of a minor and custody rights.
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.
Zaki had initially suggested that it may be better for the children to take the case to court themselves when they come of age at 18.
But Shamala’s lawyer, Datuk Cyrus Das, stressed that while his client and the two young children may be abroad, they were still Malaysian citizens and had the right to have their legal concerns heard by the court.
“She wants the Federal Court to decide once and for all if one parent can unilaterally convert the religion of their children,” said Das.
Several non-governmental organisations (NGOs) were also present in court to lend support to Shamala, including the Women’s Aid Organisation (WAO).
“There is a huge crack in the nation due to the overlaps (in jurisdiction between Islamic and civil courts), the rolling back of rights. (If unresolved), people will have no choice but to go to the ballot box,” Ivy Josiah, WAO executive director, told reporters.
PUTRAJAYA, May 3 — Hindu mother S. Shamala's efforts to seek a Federal Court ruling to raise her two young children in that religion rather than follow her estranged Muslim convert husband could be the last such case depending on how Malaysia's highest court decides.
The bank clerk’s family was in court today and appeared disappointed at the decision by the panel of five of the nation’s most senior judges to put off the hearing after it was suggested that the outcome of the proceeding may be an “exercise in futility”.
“We’ve been emotionally traumatised. It’s taken a toll on us, physically, emotionally, mentally,” Shamala’s younger brother, Dr S. Sharimalan, 30, told reporters here today.
“We’ve not seen my sister and nephews for the longest time ever,” he said.
His mother added tearfully that it had been nearly six years since she last laid eyes on 38-year-old Shamala and her grandchildren and just wanted to see justice done.
“In this case, is it wrong for a mother to fight for the rights of her children? Is it a crime?” she quizzed.
“I’m a mother. I want my daughter and my daughter wants her children. That’s all,” she added brokenly.
Dr Sharimalan who continued on behalf of his parents, both who declined to give their names, added that communication from Shamala was few and far in-between.
“God knows where she is now. We’ve only communicated with her occasionally through emails and a few phone calls,” he said, and noted that his eldest sibling lived in constant fear and confusion over the conflicting orders issued by the civil High Court and the Syariah High Court.
“She’s not revealed where she is. Her fear is we’ll get harassed,” added the Alor Setar native.
“How many cases of Shamala’s are there? We just want a solution so no more cases like this will happen,” he stressed.
Shamala’s father, who stood stoically beside his wife, added that he hoped the Federal Court would go ahead with the hearing and decide on the five questions that had been submitted.
The five questions raised 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?
Chief Justice Tun Zaki Azmi who chaired the five-man bench had earlier noted an objection from Shamala’s anaesthetist husband, Dr Muhammad Ridwan Mogarajah (alias Jeyaganesh C. Mogarajah), that if the hearing was allowed, whatever decision arrived at may be an exercise in futility because the two children were believed to have left the country with their mother and therefore beyond the reach of the court.
Dr Muhammad Ridwan wanted mother and sons, believed to be in Australia, back in Malaysia before hearing the highly-charged conflict on religious conversion of a minor and custody rights.
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.
Zaki had initially suggested that it may be better for the children to take the case to court themselves when they come of age at 18.
But Shamala’s lawyer, Datuk Cyrus Das, stressed that while his client and the two young children may be abroad, they were still Malaysian citizens and had the right to have their legal concerns heard by the court.
“She wants the Federal Court to decide once and for all if one parent can unilaterally convert the religion of their children,” said Das.
Several non-governmental organisations (NGOs) were also present in court to lend support to Shamala, including the Women’s Aid Organisation (WAO).
“There is a huge crack in the nation due to the overlaps (in jurisdiction between Islamic and civil courts), the rolling back of rights. (If unresolved), people will have no choice but to go to the ballot box,” Ivy Josiah, WAO executive director, told reporters.
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