It is never easy when it comes to settling matters after a separation or divorce. Nothing is more so than in questions about custody and welfare of both parties' children. When an intimate partnership breaks down to such an extent where the supposedly objective legal system is turned to for resolution, it can be extremely hard to not forget about the actual lived experiences of those involved.

In the recent highly contested case of Shamala Sathyaseelan vs Dr Muhammad Ridzwan Mogarajah (previously known as Jeyaganesh Mogarajah), a Hindu mother brought a case against her former husband who has converted into Islam on issues of custodial rights, and his conversion of the children into the same without her knowledge or permission.

The case has been much publicised and talked about in public forums. This is especially since it deeply implicates the fundamental rights of Malaysian citizens on the questions of freedom from religious discrimination and equal protection under the nation's law. Further, it also highlights the questions of gender-based equality between both parents as protected under the Federal Constitution and Guardianship Act.

Since we have the Federal and Syariah legal systems, both of which are constitutionally supposed to address different matters in a citizen's life according to religion-based identity, the case highlighted the murky grey areas between each jurisdiction. By stating that the civil court had no jurisdiction to hear about conversion (to Islam) issues, High Court judge Datuk Faiza Tamby Chik effectively removed Shamala's ability to receive legal protection and redress. This is because the Syariah court has no jurisdiction over Shamala as she is a non-Muslim. Her only recourse, which is the civil courts, was closed to her since it refused to accept responsibility through the denial of capacity.

More recently (20 July), the same court and judge revised its decision and granted both parents legal custody over the two children, whilst granting Shamala actual custody of them. This means that Shamala can now have the children living with her, and have legal protection should Muhammad Ridzuan decide to refer to the Syariah Courts to escape liability under the civil legal system. In giving his judgement, Datuk Faiza gave a warning that Shamala's right of custody could be withdrawn if the there was reasonable belief that she was influencing the children against their present belief, which is Islam.

Although the judgement sounds like a reasonable compromise in legal language, it raises further questions. Does this mean that one partner is allowed to convert mutual children into Islam (with legal consequences) without the involvement of the other? Does this mean that civil courts now formally have jurisdiction to hear matters of conversion regarding Muslim children? Does this mean that in the future, whenever there is a legal conflict between parties in a marriage who are Muslim and of another faith, they should take it to the civil court? More importantly, in this instance, what does it mean for the daily lives of Shamala, Muhammad Ridzuan and their children, Saktiswaran, and Theiviswaran?

Muhammad Ridzuan has previously used his rights of visitation, accompanied by the religious authority, to take the children away from Shamala, and relied on the Syariah Court's order to keep the children. Is she now able to trust him (and the court for protecting her rights) when he exacts his new visitation rights? He has also converted the children, aged three and two, to Islam without her knowledge or consent. Although Datuk Faiza alluded to the fact that the children could cease to be Muslim before the age of 21, the punishment under Syariah courts in Malaysia for apostasy is less than clear. In some instances, it can include rehabilitation, imprisonment and even the death penalty. The Federal Court recently (21 July) stated that it did not have jurisdiction on cases where Muslims decide to renounce Islam.

How realistic would it then be for Saktiswaran and Theiviswaran to be able to decide on their religious beliefs, something that is central to a person's notion of self, later on in life? When they grow up, how would they react to the fact that their father made this decision for them without first waiting to consult with them? How would they feel when they realise they can only tenuously rely on uncertain and conflicting laws to protect their ability to make changes in this matter should they want to? Additionally, by expressly limiting Shamala's ability to interact with them on matters of religion that is not Islamic through the threat of losing her right to live with them, has she lost her ability as their mother to relate to them on this significant aspect of life?

Clearly, there is an issue of power that is struggled for between several parties highlighted here. First, the matter of separate civil and Syariah legal systems that seems to work on the sanitised platform of words, but not on the 'messier' arena of daily life. Then there is the question of contesting rights between majority Muslim citizens and citizens of other faiths in personal law. Finally, there is a power struggle between two adults who are in a moment of fracture, facing great emotional stress. To a greater or lesser extent, these are all being played out on the lives of this family, in particular the children.

In the urgent need to debate about questions of legislative power and jurisdiction, protection of fundamental civil liberties for a pluralistic nation, as well as equal rights for both parents, we must not forget to take into account the realities of those involved; their different concerns, pains, fears, hopes and practicalities that come with the inevitable changes in their lives. This must be the central and foundational point of reference when thinking through these various power struggles, for these are the individuals who will be made to live its consequences.

Jaclyn Kee
25th July 2004

Fortnightly Column by WAO on Sunday Mail

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