17 July 2006
A Mother’s Rights
A joint press statement by Women’s Aid Organisation (WAO), All Women’s Action Society (AWAM), Women’s Centre for Change, Penang (WCC) and Sisters in Islam (SIS), four women’s groups that are holding a watching brief in the Shamala Sathiaseelan case.
WAO, AWAM, WCC and SIS recognise and endorse the right of every person to profess and practise the faith of his or her choice. There is, however, great cause for concern when an individual’s change of faith leads to a denial of his spouse’s equal right of decision-making with respect to their children.
In Shamala Sathiaseelan’s case, her husband’s conversion to Islam has had a negative and discriminatory impact upon Shamala’s rights as a mother. The father and his religion have been favoured over the mother and her religion. Although the High Court acknowledged that Shamala’s husband’s unilateral conversion of their children to Islam is not binding on her, the court did not grant her application for a declaration that the conversion is null and void. Instead, despite recognising that the Syariah Court has no jurisdiction to hear her case since she is not a Muslim, the judge nevertheless held that the Syariah Court is the only qualified forum to determine the status of the children. It is untenable that a Malaysian citizen has thus been blatantly denied access to justice.
We urge the Court of Appeal to uphold Article 12(4) of the Federal Constitution, which has been judicially interpreted to necessarily mean that both the father and mother shall decide the religion of a child under 18 years of age. We also call on the court to give meaning to Section 5 of the Guardianship of Infants Act 1961, which gives a mother equal guardianship rights over the children.
Furthermore, we urge the court to take account of Malaysia’s accession to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Rights of the Child (CRC). Each of these treaties contains clear and unequivocal provisions that oblige State parties, such as Malaysia, to ensure the equality of both parents in raising their children.
WAO, AWAM, WCC and SIS have appointed Haris bin Mohamed Ibrahim to hold a watching brief to monitor the Court of Appeal proceedings in Shamala’s case. The key issues are:
Whether one parent can unilaterally convert the children of the marriage to Islam without the knowledge and consent of the other parent, who is an equal guardian by law;
Whether the civil courts have jurisdiction to hear cases concerning the conversion of children to Islam, so that non-Muslim parents have access to the courts if they need to contest their children’s conversions;
Which court has jurisdiction to decide on custody of children in cases where one parent has converted to Islam, and the impact of the issuance of conflicting custody orders by the civil and Syariah courts; and
Whether a Syariah Court can issue a warrant of arrest against a non-Muslim for non-attendance at the court.
We believe that when one spouse of a marriage that was solemnised under civil law converts to Islam, all matters pertaining to it (including custody, maintenance and inheritance issues) must be settled under civil law and in the civil courts in order to avoid conflicts of jurisdiction.
We urge the judiciary to recognise the grave injustice suffered by Shamala and to rectify it by ensuring that Shamala is treated on an equal basis as her husband in terms of the rights of parents to raise and make decisions about their children’s upbringing, and that her religion is treated on an equal basis as her husband’s.
For further information, please contact Ivy Josiah or Chin Oy Sim at Women’s Aid Organisation (WAO) (03-7957 5636 or 03-7957 0636).