Court of Appeal refers five questions to the Federal Court

Tags: conversion | Jeyaganesh C Mogarajah | Muhammad Ridzwan Mogarajah | Shamala Sathiaseelan

Written by Chan Kok Leong

Tuesday, 28 April 2009 23:17

PUTRAJAYA: The Court of Appeal has referred the matter involving the custody and conversion of the sons of S Shamala and Dr Jeyaganesh C Mogarajah (Muhammad Ridzwan) to the Federal Court.

Initially meant to hear a series of appeals against the jurisdiction of the Islamic and civil courts, appeals against warrants of arrest and contempt of court proceedings and custodial rights, the Court of Appeal agreed to instead refer five constitutional questions to the apex court before hearing the appeals.

The Federal Court will have to adjudicate on conflicting Islamic and civil laws governing conversion and family matters and also on the Federal Constitution, including on equality and freedom of religion.

Court of Appeal judge Datuk Abdul Hamid Embong, who presided with Justices Datuk Hasan Lah and Datuk Abdul Malik Ishak were unanimous in their decision to refer the questions. The five questions are:-

1.   Whether Section 95 (b) of the Administration of Islamic Law is ultra vires Article 12 (4) (which states that there shall not be discrimination against any citizen) and Article 8 of the Federal Constitution (that all persons are equal before the law and entitled to equal protection of the law).

2.   Whether Section 95 (b) of the Administration of Islamic Law, as state law, is by reason of Article 75 of the Federal Constitution, inconsistent with a Federal law, namely, Section 5 (1) of the Guardianship of Infants Act and therefore invalid.

3.   In the context of Article 121 (1A) of the Federal Constitution (which gives exclusive jurisdiction to the Syariah Court on Islamic matters), where a custody order is made by the Syariah Court or the High Court, on the basis that it has jurisdiction to do so, whether there is jurisdiction for the other court to make a conflicting order.

4. Where there has been a conversion of the children of a civil marriage into Islam by one parent without the consent of the other parent, whether the rights of remedy under Part II of the Federal Constitution of the non-Muslim parent is vested in the High Court.

5.   Whether in the context of Articles 8, 11, 12 (4) and 121 (1A) of the Federal Constitution, the Syariah Court has exclusive jurisdiction to determine the validity of conversion of a minor into Islam once the minor has been registered by the Registrar of Muallafs (Majlis Agama Islam).

A team of lawyers led by Datuk C V Das represented Shamala while Muralee Menon appeared for Dr Ridzwan, and Tan Sri Azmi Md Rais and Zulkifli Che Yong for the Islamic council agreed to the referral questions.

Watching briefs were held for All Women’s Action Society, Women’s Aid Organisation, Women’s Centre for Change (Penang), Persatuan Kesedaran Komuniti (Selangor), Sisters in Islam, The Malaysian BAR, Association of Women Lawyers, National Human Rights Society and The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism.

The first two questions are to determine whether there is conflict between the Administration of Islamic Law (Federal Territories) Act 1993 and the Guardianship of Infants Act 1961 in matter pertaining to whether consent of both parents is necessary in the conversion of children who are minors. The third question requires the Federal Court to determine whether different courts (Syariah and High Court) can give make conflicting orders.

Shamala married Dr Ridzwan in 1998 in accordance to the Law Reform (Marriage and Divorce) Act 1976.

In 2002, Dr Ridzwan converted to Islam and subsequently converted their sons Saktiswaran and Theiviswaran, to Islam without Shamala’s knowledge and consent.

Shamala, who now has custody of the two boys, was also ordered not to teach them her religious beliefs or to make them eat pork. The former bank clerk has since fled to Australia with her sons. Dr Ridzwan has not seen Saktiswaran and Theiviswaran since 2004.

MOH on high alert at KLIA< Prev		Next >Shamala, Ridzwan both victims in conversion issue

Last Updated on Tuesday, 28 April 2009 23:25

Sorry, you cannot post a comment unless you are a registered user.

JComments

Categories

Other Publications & Pullouts