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(The Straits Times) - A custody dispute between a Hindu woman and her estranged husband who converted to Islam will be heard this week, putting to test the government’s promise to ban forced conversion of children.
The case of Shamala Sathiyaseelan will be heard by the Court of Appeal tomorrow after she lost in a lower court last year. She had failed in her bid to challenge the conversion of her two young children to Islam by her husband. The Malaysian Cabinet last week decided that minors will remain in the common religion of their parents when they married, even if one parent later became a Muslim. “We have to resolve this once and for all. I don’t think we should be deciding on a piecemeal basis every time a conversion issue crops up,” Minister in the Prime Minister’s Department Nazri Aziz had said. But it is unclear how far this policy pronouncement will be legally binding, lawyers say, as long as the law and Federal Constitution remain unchanged. This is particularly so after Malaysia’s apex court ruled last year that either parent could convert a child of the marriage into Islam. “I am uncertain as to how this policy position is to translate into practice as the Cabinet has little or no direct power in this regard,” lawyer Malik Imtiaz Sarwar wrote on his blog. “Religion is a matter for the state and not the federal government.” He is representing Shamala, whose case will be the first to go to court after the Cabinet pronouncement. The civil High Court had earlier refused to rule on the legitimacy of the conversion of her children. It said the Syariah Court has jurisdiction as they were Muslims although as a non-Muslim, she has no legal standing in the Islamic court. Malaysia has a parallel legal system for family issues for Muslims and non-Muslims. Disputes sometimes arise when a case straddles both jurisdictions, for example when one party to a marriage becomes a Muslim or if a Muslim attempts to convert out of Islam. The civil courts have consistently refused to accept jurisdiction in cases such as Shamala’s. The government has come under pressure in recent years to resolve the impasse. Last week’s pronouncement was its first attempt. It came after yet another case surfaced. That case, with facts identical to Shamala’s, involved kindergarten teacher M. Indira Gandhi, 34, whose three children were converted by her husband. The civil High Court has since ordered the three children to remain with her pending a final court order. Her lawyer A. Sivanesan told The Straits Times that the full case will be heard soon, but in the meantime, he and several MPs plan to push for a more concrete solution. “We want it to be made clear that a child can’t be converted without the consent of both parents, and that a civil marriage must be resolved under civil law,” he said. The government has asked the Attorney-General to look into legal amendments. Sivanesan said the Federal Constitution is currently worded in a way that suggests that one parent can convert a child. He also said the civil law on marriage and divorce had flaws in the manner it treats the non-converting spouse after one party became Muslim. The number of disputes relating to conversions has been few but the cases have been high profile and contentious, straining racial and religious ties. Sivanesan said he will be filing another two cases in court soon. One involves a Hindu father against his estranged wife, who converted their two children to Islam. The second case is that of a Chinese convert who wants to return to Buddhism as he is suffering from terminal cancer. He had converted to marry but the plans fell through. The Cabinet pronouncement, while welcomed by non-Muslims, has been met with reservation by the Islamic authorities. The Malaysian Syariah Lawyers Association deputy president Musa Awang was quoted by The Star as saying that the courts should be free from governmental interference. The Islamic Development Department director-general Wan Mohamad Sheikh Abdul Aziz said the courts should look at both Islamic and civil laws in such cases. The Cabinet pronouncement may not spell the end of the long-standing problem.
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