The country’s top court yesterday unanimously dismissed S. Shamala’s bid to raise her two young children as Hindus, after she questioned their conversion to Islam by her estranged Hindu-turned-Muslim husband eight years ago.
MCA deputy publicity chief, Loh Seng Kok said the law should be amended to specifically provide that in the event both parents cannot agree on the child’s faith, then it should remain status quo until the child reaches the age of maturity.
“The government must act forthwith to table to Parliament the necessary amendments to the various laws to give effect to the Cabinet decision of 23 April 2009 that if one spouse embraces Islam, the children should follow the faith that the parents agreed on at the time of marriage or implied by their common religion,” Loh said in a statement.
He said the law is consistent and complies with the Convention on the Elimination of All forms of Discrimination against Women (Cedwa).
“Such amendments if passed by Parliament would go a long way to fortify the 1 Malaysia spirit and intent,” he added.
The MCA man also said that the five issues raised by Shamala should be addressed by the court.
“MCA believe that whilst the Court was constrained, the Judges could have at least attempted to provide their views on the issues referred to them by way of obiter dictum. Although the views if expressed, would not be a binding precedent, they would provide clear guidance to lower courts and litigants as well as other stakeholders,” he said.
He claimed the court was “unable and unwilling” to address the five issues and suggested that the Parliament review laws relevant to this matter, particularly Section 5 of the Guardianship of Infants Act 1961.
Yesterday’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 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.
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.
13/11/10
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