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It is encouraging to note that, in a written reply given in Parliament on 14/7/04 concerning the custody rights of a non-Muslim parent, the Government has reaffirmed its commitment to "ensure" freedom of religion as well as the maintenance of other fundamental constitutional rights.

However, the Government has also taken the view that existing laws on the above subject are "sufficient". In reality, though, the desired effect of these laws is not achieved, as has been borne out by Shamala's case. Many non-Muslim parents continue to endure hardship in matters relating to family and children.

A typical predicament faced by non-Muslim parents may arise in the following manner (as it did in Shamala's case). Two non-Muslims marry and start a family. Later, one of them (almost invariably the husband) decides to convert to Islam, and thereafter also unilaterally converts their minor children (without the consent of the other parent). The non-Muslim parent (almost invariably the mother), being a joint guardian at law, goes to the civil court to challenge the children's conversion. The court declines jurisdiction, and "advises" her to seek redress from the syariah court, ignoring the fact that this is an obviously non-viable option. She has no right of audience before the syariah court. More importantly, it is unacceptable in principle to subject her to a system that does not (and should not) apply to her in the first place, one which functions on a vastly different set of rules that is not meant to (and should not) affect her rights at all.

There is often a related issue of custody of the children. While the mother may have obtained a custody order in her favour from the civil court, the father obtains a different one (in his favour) from the syariah court. It is most unhelpful that the system gives rise to competing orders of this nature. The resultant tug-of-war is surely not in the interest of the children.

Frequently, therefore, the non-Muslim parent is left in the lurch and without a practical remedy.

As long as situations such as that described above are allowed to occur, constitutional guarantees of freedom and equality remain illusory. When human suffering persists despite assurances of a person's rights, what is required of the system is to immediately find ways to transform conceptual guarantees that are cold comfort to the affected parties, into effective safeguards that can be relied upon. Towards this end, not only should existing laws be strengthened and made clearer, it is also incumbent on our Judiciary to be proactive in preserving and promoting fundamental rights; so that never again will any mother be left in despair and be compelled to resort to drastic measures in her honest desire to protect the interest of her children.

Dated 16^th July 2004

Yeo Yang Poh
Vice Chairman
Bar Council