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The Madness of MokcikNab
Motives, movements and melodrama in the life of a thirty something mum.

Thursday, July 22, 2004
Those Poor Children...

My children's mortal fear is that my husband and I would one day go seperate ways, or in legal terms, divorce. My parents are seperated and this fact is a source of constant curiosity, and apprehension, for Adam and Aiysha. (I also have a 3 year old called Aliya, but since she's the Queen, she assumes everyone will continue to serve her no matter what happens)Adam and Aiysha is troubled by the fact that family - the bedrock of their existence - could actually dissolve, alarmingly, without their consent.

Adam, my nine year old worrywart, will torture himself with all possible scenarios : who would I stay with? what if no parent wants me? will I ever see Aiysha and Aliya again? It does not help that one of his closest friends is already living within this strange and uncomfortable confines of a marriage that has irretrievably broken down. He sees the emotional impact and even though I assure him divorce is a remote risk for his father and I, at the back of his mind is this : divorce is possible.

A conventional divorce, even the silly thought of it happening to your sometimes giggly mum and dad, is probably a monster of a burden to bear for children. Now imagine having to choose between parents, and with that, having to choose between Gods. My heart goes out to the children of Shamala Sathyaseelan and Dr Muhammad Ridzwan Mogarajah. They're only two and four -- my only hope is that, despite the enormity of the situation, despite the public blow-up this private matter has brought on, I fervently wish that in the end they will be raised to respect and love both parents, because no court order will negate the fact that Shamala is their mother and Ridzwan, their father.

Allow me the vanity of saying something about their plight -- there are already various opinions on the matter in the Star today (somehow, I can't find it on the online edition).If you haven't been reading about the Shamala case, and the seminal judgment by Justice Faiza Tamby Chik, you may want to check out this blog first. Unfortunately, all the comments so far have been supportive of Shamala only, and I have noted with dismay, that most have hinted at a Muslims-are-out-to-get-us kind of stance.

First, let me say that I can empathise with both Shamala and Ridzwan. I can understand their motives and really, how can you settle something which essentially distills to "I believe my religion is better than yours"? That is a question no mortal can answer, and Muslims are ordained to respect a person's choice of faith. (As one penceramah once said : if there were to be no options in religion, Allah s.w.t would have made everyone Muslim).

This point of contention, dreadfully, is no longer a private matter between Shamala and Ridzwan. Through the hearings, the dispute has taken political and constitutional dimensions - with the right to profess any faith and the status of Islam as the official religion de facto plaintiff and respondent.

For once, I cannot take a stand on an issue because I can see the merits in both sides of the argument. But because I like arguments to have a semblance of fairness, --so far the published thoughts have been rather partisan-- here are some questions I like answered :(proviso : I slept through law school, okay -- this attempt at being clever is based on dim memories of some lecture. They may not, in fact, be accurate)

The court took cognizance of the fact that the children are mualaf, does it imply the children's conversion to Islam is legal?
If the children are, in fact, Muslim, would a custody order from a civil court be binding upon them?

Who has the right to decide on a child's faith? If Ridzwan cannot unilaterally convert his children to his belief, then Shamala can't either. But if Shamala has actual custody, then she has the upper hand (despite the caveat) to influence her children, and this is grossly unfair to the rights of the father - who as a Muslim, believes that he has the responsibility to raise his offsprings as Muslims.

What does this case say about the jurisdiction of the Syariah court? In the Federal Constitution the Syariah and civil courts are two seperate and parallel systems. And if I am not mistaken Art. 121A is meant to protect the powers of the Syariah court, in the sense that no order made by the Islamic court can be subsequently overturned by a civil court. Even though the High Court may have the jurisdiction to hear this custody case, would Art. 121A render the judgment by Faiza, J. unconstitutional? When the two systems are in conflict, how should it be resolved?

We have taken the ostrich approach for so long, I am actually quite glad we are now forced to examine this thorny issue out in the open. Sure, it's an eruptive boil of resentment about rights, religion and race - but it's a fester we cannot afford to ignore if we truly believe in a united Malaysia.


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