Malice against the Federal Constitution

The Ipoh High Court decided that a convert Mohd. Ridzuan Abdullah’s initiative to ensure that his minor children’s’ faith are Islam by obtaining certificates from the Perak Religious Department is wrong. Instead Judicial Commissioner Lee Swee Seng decided that both parents must have the right to determine the faith of the children.

The Malaysian Insider report:

Hindu mother wins legal fight to also decide children’s faith after husband converts them to Islam

BY RITA JONG
JULY 25, 2013
LATEST UPDATE: JULY 26, 2013 02:05 AM

The Ipoh High Court today quashed the three certificates obtained by kindergarten teacher M. Indira Gandhi’s husband in converting their three children to Islam, saying although he was entitled to convert his religion, he cannot deprive his children and mother’s rights to religious freedom.

This landmark decision by judicial commissioner Lee Swee Seng ruled that both parents must have the right to decide in the conversion of their children.

He allowed Indira’s judicial application with no order as to cost.

Indira filed for a judicial review application in 2009 to quash the three certificates issued by the Perak Islamic religious department, after her then husband, K. Patmanathan, converted them without her knowledge.

Patmanathan had himself converted to Islam on March 2009 and is now known as Mohd Ridzuan Abdullah.

*******************

This judgment clearly fail to adhere to the precedent set by the Federal Court on the Subashini case almost six years ago.

Thursday December 27, 2007

Federal Court dismisses Subashini’s case

BY M. MAGESWARI

MYT 8:48:09 PMPUTRAJAYA:

The Federal Court ruled that the dispute between secretary R. Subashini, 29, and her Muslim-convert husband T. Saravanan alias Muhammad Shafi Abdullah, 32, over the dissolution of their marriage and child custody will continue to be under the jurisdiction of the civil court.

In the landmark decision on Thursday, Federal Court judge Justice Nik Hashim Nik Ab Rahman said a non-Muslim marriage does not automatically dissolve when one of the parties converts to Islam.

“Thus, by contracting the civil marriage, the husband and wife were bound by the 1976 Act (Law Reform (Marriage and Divorce) in respect to divorce and custody of the children of the marriage, and thus, the civil court continues to have jurisdiction over him, notwithstanding his conversion to Islam,” he said.

In a 2-1 majority judgment, Justice Nik Hashim said by embracing Islam, Saravanan and his eldest son (who also converted) became subject to Muslim personal and religious laws.

“It is not an abuse of process, if he, being a Muslim, seeks remedies in the Syariah High Court as it is his right to do so,” he said.

Justice Nik Hashim, who sat together with Federal Court judges Justices Abdul Aziz Mohamad and Azmel Maamor, said this:

“To my mind, the dissolution order of the civil marriage by the Syariah High Court by virtue of conversion would have no legal effect in the High Court other than as evidence of the fact of the dissolution of the marriage under the Islamic law in accordance with Hukum Syarak.

“Thus, the non-Muslim marriage between the husband and wife remains intact and continues to subsist until the High Court dissolves it pursuant to a petition for divorce by the unconverted spouse under Section 51(1) of the 1976 Act,” he said.

He said there is no impediment for the converted husband to appear in the divorce proceeding in the High Court.

He said the contention that the wife could submit to the jurisdiction of the Syariah Court and have recourse to Section 53 of the 1993 Act are not quite correct as the Act limits its jurisdiction to Muslims only.

“The wife, being a non-Muslim, has no locus in the Syariah court,” he said.

Both judges also agreed that although the Syariah courts are state courts, they are not lower in status than the civil courts.

Justices Nik Hashim and Azmel threw out Subashini’s appeal by a majority saying that the divorce petition filed at High Court by Subashini was premature and invalid as it was filed two months and 18 days short of three months after the husband’s conversion to Islam.

Justice Nik Hashim said it was his view that Subashini was entitled to proceed with her application on custody but it would be most appropriate if she filed her petition for divorce afresh.

On conversion, both judges said either husband or wife has the right to convert a child of the marriage to Islam.

***********

For a minor, the rightful guardian should be the father. Therefore the father should have the first right of refusal to determine the faith of the children, especially when the father is a Muslim.

As Muslims, the father’s role, right and responsibility over his children are enormous. Since the position of  Islam is the religion of the Federation of Malaysia and provisions enshrined in Federal Constitution as part of the definition of the nation’s identity, therefore it is paramount for any rulings pertaining to the Islamic faith be determined on the order where Islam had been positioned.

Article 3.1 & 3.2 of the Federal Constitution

Article 3.1 & 3.2 of the Federal Constitution

After all, in Islam the determination of the ‘decisive age’ is not at 18 but when the teenager experience puberty.

Many view the decision made by the Ipoh High Court to determine the authenticity of the children’s status as Muslims as per the issuance of certificate by JAIP is defective. The determination of the three children’s conversion into Islam is complete and therefore they are Muslim by faith should be carried by the process and tribunal in the Syariah High Court instead of a Civil High Court.

Just like in the case of Lina Joy.

Matters pertaining to Islam should have been brought to the Syariah High Court, as per the Art 121 (a) Federal Constitution

Matters pertaining to Islam should have been brought to the Syariah High Court, as per the Art 121 (1a) Federal Constitution

It is suspicious that Judicial Commissioner Lee’s judgment failed to take into account or worse still, omitted the spirit in the precedence of the Subashini’s case decision. It could be also seen as intentionally making the judgment in the essence and flavour where of late many minority challenged the right, position and sentiment of the majority. This is prevalent in the case where the position and role of HRH Ruler’s decree on the ultra sensitive issue  of ‘kalimah Allah’.

It is expected that Judicial Commissioner Lee’s will draw a lot of emotions and protests from Malay-Muslim groupings. This is the third insult against Islam and Muslims in this Ramadan, after Apostolic Nuncio Archbishop Joseph Marino’s outrageous statement of supporting Christian Federation Malaysia’s ‘kalimah Allah’ case and sexebitionist duo Alvin Tan and Vivian Lee’s “Bah Kut Teh Selamat Berbuka Puasa” messages.

*Updated 0830hrs Friday 26 July 2013

Published in: on July 25, 2013 at 18:00  Comments (20)  

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  3. .. kena minta mana-mana NGO menyemak peruntukkan dalam ‘Kod Etika Hakim 2009’ dan buat aduan terus secara bertulis ke Parlimen berkenaan percanggahan ini melalui MP… mana tau.. mungkin masih ada lagi MP yang ada telur sekarang ini…

    • Aku selalu tertanya tanya peroses memilih dan melantik Judicial Commissioner dan Hakim negara ini. Siapa yang syorkan nama, siapa yang rekomen, siapa yang luluskan. YDP Agong ha nya beri assent saja aku rasa.

      Kenapa orang macam tu di syorkan, di rekomen dan di lantik? Apa exceptional nya dia? Sebelom jadi Judicial Commissioner, pernah kah dia membuat penghakiman yang mengkagumkan, yang exceptional? Dia banyak kah menulis hal hal undang undang di Law Review atau majallah undang undang yang terkemuka di mana mana?

      Kalau main ikut “seniority” saja, maka akan ramai lah yang akan mengeluarkan penghakiman nampak janggal dari segi peruntukan Perlembagaan. Kecoh lah sistem penghakiman di negara ini.

      Mungkin bukan isu “‘Kod Etika Hakim” – itu bagi yang sudah di lantik Hakim. Aku rasa ini isu pemilihan Hakim atau, sebelom peringkat itu, pemilihan Judicial Commissioner.

  4. zaman Ah Jib Gor ni semua boleh.. dia pulak senyap je.. playsafe.. teloq simpan rumah ke? Pemimpin UMNO bacul semuanya. Menyesal aku undi BN.

    • Tak salah undi BN. Cuma kita kena mintak Perwakilan UMNO di PAU bulan November gantikan Ah Jib Gor.

      Mari lah kita laungkan selalu.

  5. Obviously the Ipoh High Court judgement has created another precedence. Surely there will be an appeal.

    It is obvious that liberalism has the upperhand and is creeping into the Malaysian society faster than the speed of light. It is through liberalism that opportunists will make inroads to unravel status quo by using the pretext of freedom and individual rights. This tactic is used in politics, religion, race and continues to create a very divisive society. Little wonder why there are some who’d refuse to accept the apology of a school headmaster over a changing room being used as a place for recess eventhough the place had been used by all students since March this year. It is this kind of overzealous tinkering with liberalism that can turn everything into an endless charade of suspicion, ego complex , recrimination and mistrust.

    • Leaders who are enamoured with liberalism cannot just wash their hands. They opened the floodgate and threw caution to the wind thinking that it is easy to manage a multiracial country by just being liberal. So what and how are they going to solve the sickening state of affairs if they can’t provide a firm and not chicken type of leadership? Being accomodating is not the same as being overwhelmed.

    • Agreed. Support both the above comments.

      Must be appealed. To the highest court of the land. The interpretation of Article 3 of the Constitution has become an issue from time to time. Especially in the kalimah Allah matter. Now at the Appeal court.

      Wonder why it is not yet heard. Waiting for PRU14? Or for the Papal Nuncio to come out with another scandalous remark against the interest of Islam? Or for Najib to be voted out by UMNO in November?

      Must be pursued to the Federal Court of Appeal if the Appeal Court’s decision is not favourable.

      • Yet the Alvivi blokes’ request for review for the no bail decision was granted rather speedily. What’s the urgency on such a serious anti-Muslim matter?

        The hearing date was fixed by the Court Registrar, innit? Wonder who it was. And what was the consideration. And we are allowed to ask such things, innit?

  6. So, are you saying that the mother, in such a case, is a “second class” citizen?

    Doesn’t the Federal Constitution state that there is to be equal treatment for all Malaysians?

    Or are some Malaysians “more equal than others” on the basis of religion and race?

    You can’t have it both ways.

    Either we are all equal before the laws of the land or there are some who will always be “second class”.

    Cue the “anti-pendatang” brigade to weigh in with their usual shrill protests.

    • nola goblokman, islam is higher than any religion in federation of malaysia. this has nothing to do wit mother a second class citizen. to u, justice = equality, whereas in islam, justice = putting things in proper place, shows that islam is the most in upholding justice, bukan main hentam sama rata je. tak suka balik negara pendatang u la. kami org melayu islam xde masa nak jg hati u lg.

    • Pls dont play that sordid dumbshit drama about Non Malays/Non Muslims are second class citizens of this nation.

      Judicial Commissioner Lee Swee Seng made an error, as far as the Federal & State Constitutions are concerned about matters pertaining Islam and faith of a Muslim.

      It should hv been heard in the Syariah High Court, by more competent Judge on the subject matter.

      The laws are clear on the process how the matter should be resolved.

      If these Non Malays/Non Muslims failed to follow the due process, don’t blame the majority who only follow on on the path already provided clearly by the Federal Constitution.

    • Bloody stupid statement implying that the equal treatment stated anywhere in the Constitution is not qualified by other Articles like 153 on the Special Position of the Malays and the Bumiputeras of Sabah and Sarawak. Which school did you go to? DAP school?

      Yes, you can queue up the bastardizing of you with that kind of insinuation. You are deliberate in your seditious comment. You are implying you do not acknowledge the Special Position of the Malays and the Bumiputeras.

      Damn you. More than a shrill protest, I think one shout of kepala bapak kamu is in order.

  7. Guardianship rights and the right truth: It’s always a painful situation when the parents controversy involves their innocent children. It reminds us of the troubles and hardships the blessed Prophet and his companions had to bear during the times of jahiliyah when some men proclaimed themselves as “dewa and brahmin” and discriminated against the people as “commoners and slaves”. But Allah Most HIgh only looks at our hearts and will judge us for our good and evil actions, not our “caste”. Dr. Zakir Naik answers some questions about the One True God Most Merciful.

  8. Well, if the perception of the ‘ second class citizen’ is to be used as an argument, then the father now should fall under the ‘second class citizen’ because his rights as a father to convert his kids into Islam has been revoked by the court in favour of the mother. Like as if the father has no rights. And it can swing back and forth from mother’s rights to father’s rights. So what next? Malaysians in general dont know how to mediate, negotiate or arbitrate to solve problems without going to the courts. The social skills, humility and empathy among people are waning in favour of dragging issues and conflict to the ring and sling them punch by punch.

    • Those who like to perceive themselves as 2nd class, let them.

      The Constitution of the country is loud and clear. There are the sensitive clauses that are protected by the Sedition Act. Now Najib wants to discard that Act. Replace it with Harmony Act what have you.

      How can there be harmony with the likes of these bastards? Non-Constitution respecting and abiding and seditious even on our Islamic religion like the Alvivi blokes.

      Cannot hope to get the same effect as the Sedition Act. The ISA was replaced with SOSMA but where got the same effect – ISA allowed detention without trial indefinitely, SOSMA allows only 28 days.

      TDM said if so many laws are replaced, there’ll be no laws and how to say this is a nation of law. Have Najib replaced to ensure no replacement of the Sedition Act.

  9. Big Dog, with all due respect, don’t you think it’s only fair to the child if she remains with the family’s default religion til she turns 18 (or 16) during her puberty?

    Understand that religion can be an ultra-sensitive issue. but this is the girl’s future we’re talking about. don’t you think that she has the rights to choose for herself? please advise, big dog. no harmful intentions meant, sir.

    • Thank you.

      The father has been a Muslim since 2009. He has been graced with Allah s.w.t.’s hidayah and he wanted his children to have the same faith and belief as his.

      Hence, he decided that the children should be a Muslim like he is.

      It is not wrong for Mohd Rizuan Abdullah to have that feeling about his children and wanting their faith and belief to be preserved for the righteousness as Muslims.

      Especially four years ago, it is the formative years for the children.

      So he went to JAIP and JAIP issued certificates to ‘protect’ these children’s legal faith.


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