A critique of a Malaysian child custody ruling that demonstrates the influence of the Sharia (Syariah) there. From Malaysiakini, with thanks to Susan:
The Malaysian Federal Constitution 3(1) states that, “˜Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.
In Shamala Sathyaseelan vs. Muhammad Ridzwan Mogarajah; Mogarajah had converted his two children aged two and three to Islam after his own personal conversion.
Justice Faiza Thamby Chik had referred the case to the Syariah Court and eventually delivers a verdict in favor of the Muslim father. Justice Faiza also claimed that the father had the capacity to convert the children to Islam because:
a) The wife did not challenge his own conversion nor seek a divorce when he converted; and
b) He is the natural father of the said children and a Muslim.
Justice Faiza concluded by claiming that only the Syariah Court has the capacity and expertise to hear this case and therefore, the mother should take her application to the Federal Territory Religious Council.
This is an unwise judgment due to the following points:
a) It is a violation of the basic religious rights of the non-Muslim minority in Malaysia.
b) It contradicts Section 5 of the Guardianship of Infants Act.
c) Malaysia’s ratification of the Convention against All Forms of Discrimination against Women and the Convention on the Rights of the Child is not being observed and practiced by the Malaysian judiciary.
d) It enables a disgruntled father an easy way to gain custody of his children by only converting to Islam.
e) The lack of protection to the non-Muslim female citizen to fight for the legal custody of her children as the non-Muslim mother has no legal locus standi to seek relief under Syariah law.
Islam is a social justice system, but the Malaysian judiciary system, has conveniently denied justice to this non-Muslim mother in her struggle for custody rights. This has created the circumstance of forcing the non-Muslims to accept the judgment of the Syariah Court.
This is not what the Malaysian constitution meant.
In Shamala Sathyaseelan vs. Muhammad Ridzwan Mogarajah case, Justice Faiza failed to recognise:
a) The motives of Mogarajah’s conversion to Islam. If Mogarajah converted purely for child custody, then judgment should take this into consideration.
b)That the custody case of the children should be heard by the court after the parent’s divorce proceedings or before the conversion of Mogarajah to Islam.
c) That the Syariah Court should not be involved in cases that involves inter-faith family law.
d) That although there is no law governing non-Muslim parental and religious rights in Malaysia, the courts need to exercise wisdom and analyse such cases rather than conveniently passing their responsibilities to the Syariah Court.