Federal Court’s Cowardice Disappointing

TIn a joint statement issued on Human Rights Day (Dec 10), women’s rights groups expressed disappointment at the lack of courage displayed by the Federal Court as it has neglected to resolve conversion issues presented before them.

The recent majority decision by the Federal Court, which was in effect a decision to not make any decision, leaves Shamala and others, mainly women, in similar situations without clarity as to their legal rights.

In 2002, Shamala Sathiyaseelan approached women’s groups seeking help. Her husband had converted to Islam and had also converted their two children without Shamala’s knowledge, let alone her consent.

Eight years and many court hearings later, Shamala is still left in limbo.

On Nov 12, 2010, the Federal Court shirked its responsibility to execute justice by declining to answer constitutional questions relating to the validity of the unilateral conversion of children to Islam by a father. The federal court had cited Shamala’s absence as the excuse for neglecting to answer the constitutional questions.

In past court decisions, Shamala’s equal rights as a parent were denied and she was told to raise her children in a religion that was not her own. She was understandably compelled by circumstances to flee the country with her children. The Federal Court did not give due regard to the circumstances that caused Shamala to flee and yet she had turned to this Court to resolve the vexed question that confronts her and many others.

Both international conventions and Malaysia’s domestic legislation concur that women and men must have equal rights to make decisions pertaining to their children. Section 5(1) of the Guardianship of Infants Act 1961 clearly states that both parents have equal rights with regard to matters relating to the upbringing of their children. And yet the courts continue to evade their duty to uphold the rights of women as equal guardians.

The Federal Court’s refusal to answer crucial and critical questions in this high profile case leaves us no closer to achieving clarity. In the meantime, an array of injustices against non-convert spouses continues to be perpetrated in light of this legal loophole.

Courage and political will from the structures of our democratic government – from parliament and the judiciary – are required at this time to affirm the equality of all Malaysians.

Joint Action Group for Gender Equality

Published on December 17, 2010