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.
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.
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