Tuesday, May 4, 2010

Shamala case: Objection raised, decision postponed - Malaysiakini

A preliminary objection was raised in the Federal Court in relation to the conversion of two under-aged boys, whose father converted them to Islam without their mother's consent eight years ago.

NONELawyer Muralee Menon (left), representing Dr M Jeyaganesh, pointed out that S Shamala had left for Australia in 2004 with the couple's two sons, now aged 11 and nine.

"The High Court judge (Md Raus Shariff, now Federal Court judge) had (on April 17, 2003) had granted my client access rights to visit the children. However, when he went to visit them on April 23, 2004, he found the house to be locked and the children nowhere to be found.

“It was only after some searching that my client got to know that she and the children had left via Padang Besar for Australia on April 16, 2004.
"The court through (Justice) Faiza Tamby Chik had granted leave for contempt proceedings against (Shamala) for taking the children abroad, since my client could not see them.”

Muralee therefore argued that Shamala's counsel had no right to be heard in the proceedings today because she had attempted to commit contempt of court. He said several case laws support his argument.
Shamala, 37, had married Jeyaganesh, 41, in 1998 according to Hindu rites and their marriage was registered under the Law Reform (Marriage and Divorce) Act 1976.

In 2002, Jeyaganesh embraced Islam and took the name Muhammad Ridzwan Mogarajahand. He then converted Saktiwaran and Theiviswaran, then aged three and two, to Islam without Shamala's knowledge and consent.

cyrus dasSenior lawyer V Cyrus Das (right), representing Shamala, challenged the objection by submitting that she had not committed contempt, but had obtained leave to initiate proceedings.

He also brought to the court's attention that, according to the High Court ruling, Jeyagandesh was to have paid maintenance of RM250 for each of the children.

He submitted that, based on Section 51 of the Law Reform Act, a party has the right to receive maintenance even if the spouse has embraced Islam.

zaki azmi 291008Chief Justice Zaki Azmi (left), who is leading a five-member bench, questioned the lawyer as to why the matter had to be raised in court when it was more of a “social and political” issue.

Cyrus replied: “Every constitutional question is a political question and the court has to decide on the five questions which have been posed based on Article 128 of the federal constitution. Politicians can look into question but the court has to interpret the law.”

Cyrus also said Jeyagandesh had committed a deplorable act by getting around the civil court in obtaining a Syariah Court order for custody of the children.

“He told the court that he needed time to engage a lawyer but, at the same time, made an application to the Syariah Court for custody. He had already appointed his lawyer by then.”

Cyrus explained that, although there are local case laws on such issue, there are also British case laws where in the interests of justice, the court can allow the rights of the party to be heard.

Justice Zaki said the court will decide on the preliminary objection in a few weeks as this is an important issue that is also complex.

"We would like to read through the case laws. We do not want to rush things," he said.

Sitting with him was Court of Appeal president Justice Alauddin Md Sherif, Chief Judge of Malaya Arifin Zakaria, Chief Judge of Sabah and Sarawak, Richard Malanjum and Justice Zulkefli Ahmad Makinuddin.
Five issues
The court room was packed with lawyers and representatives of NGOs this morning, as the court was due to rule on five questions centred on constitutional matters.
The case and its rulings will set a precedent for other child conversion and custody cases.
Five questions, which were agreed by the Court of Appeal, have been posed to the Federal Court to decide:

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 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 registred by the Registrar of Muallafs (Registrar for newly-converted Muslims)?
Shamala's legal team also includes S Ambiga, Ravi Nekoo and Steven Thiru.
Counsel Zulkiflee Che Yong and Azmi Mohd Rais are appearing for the Federal Territory Islamic Council.