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The recent case of Shamala v Jeyaganesh & Anor concerns parental right to decide the religion of a minor child. In that case the couple was married as Hindus, and has 2 minor children. The husband then converted to Islam, and almost immediately also converted the children. The wife (who remains a Hindu and who has custody of the children) sought relief in the civil court to challenge the validity of the children's conversion, which had been done without her knowledge or consent.

The High Court did not deal with the substantive merits of the wife's application, as it decided that it did not have jurisdiction to hear the matter. This effectively leaves the wife with nowhere to turn to for legal relief. The hardship that results is obvious.

Freedom of religion relates to the issue of freedom, rather than of religion. Likewise the right to decide the religion of a minor is an issue of parental right, rather than an issue of religion. In both instances, there is no element of any "contest" between religions. It is simply and purely a question of rights and freedom, concerning which the same principles must apply regardless of the religion or religions that may happen to be involved in a particular case.

Viewed in their proper perspective, therefore, it becomes evident that these basic freedom and right, guaranteed and enshrined in the Constitution, must be upheld and safeguarded at all times by the civil court.

Article 12 of the Constitution and Section 5 of the Guardianship of Infants Act give each parent an equal parental right to decide the religion of a minor child. These provisions, quite rightly, do not make the right of a non-Muslim parent second to that of a Muslim parent (nor vice versa). They crystallize equality between the sexes and true mutual respect and acceptance of all races and religions. They must be given effect.

In his judgment, the learned Judge opines that "Islam must not be used as an escapism by non-Muslim men to run away from their legal obligations which they contracted when they were non-Muslims by merely changing their religion to Islam". Unfortunately, by declining to assume jurisdiction to hear the matter, the practical effect of that decision is exactly one of allowing such an injustice to take place. This is surely not in the best interest of the child, which is of paramount importance both in our domestic family law and in international law (as stipulated in the Convention on the Rights of the Child which Malaysia has ratified and is obliged to give effect to).

In our view, the correct legal position has already been carefully expounded in an earlier case of Chang Ah Mee v Majlis Ugama Islam Sabah & Ors; which decision upholds the constitutional rights of all Malaysians.

The importance of freedom of religion and, in relation to minors, of parental right to decide their religions until they come of age, cannot be over-emphasized. This freedom (and the concomitant right) represents the heart of a nation that gives life and vitality to a society that will be able to enjoy long-term peace, harmony, stability and prosperity. Any dilution of such freedom will endanger the health of a multi-cultural and multi-religious society such as Malaysia; and will breed the forms of extremism that Malaysia has vowed to avoid.

Issues of basic freedoms and rights must be viewed objectively and rationally, free from misguided emotions. Our courts should take a progressive and egalitarian approach to vigilantly guard and uphold such freedoms and rights. Where necessary, Parliament should enact laws to strengthen or clarify the effective existence of these fundamental freedoms and rights.

Dated 23^rd April 2004

Hj Kuthubul Zaman Bukhari
Chairman
Bar Council