The Article 11 Coalition – Its Formation
In 1998, Shamala Sathiaseelan and her husband were married according to Hindu rites. He converted to Islam in November 2002 and then converted their two young sons to Islam without Shamala’s knowledge or consent.
In April 2004, the High Court dismissed Shamala’s application for a declaration that the conversion of her two children to Islam by her husband violated her equal right, as their parent, to determine their religious upbringing. The High Court Judge acknowledged that the Syariah Court has no jurisdiction to hear Shamala’s case since she is not a Muslim. Nevertheless, the judge held that, since the children are now Muslims, the Syariah Court is the qualified forum to determine their status. The decision is reflective of the increasing ambiguity in questions of access to justice and of jurisdiction in matters relating to Islam and an increasing tendency of the civil superior courts to defer to the Syariah Courts notwithstanding the consequences.This is perhaps best illustrated by reference to the advise offered by the High Court Judge to Shamala even as he dismissed her application :
"Being a Non-Muslim the Syariah Court has no jurisdiction to hear her. What then is for
her to do? The answer to that is, it is not for this court to legislate and confer
jurisdiction to the Civil Court but for Parliament to provide the remedy…For the
moments as the law stands today I think the only way open for the Wife is to seek the
help of Majlis Agama Islam Wilayah Persekutuan…In the present case since the two
minors are now "saudara baru or muallaf" the wife can take them to Majlis Agama Islam
Wilayah Persekutuan for help and advice to resolve the said issue".
In July 2004, the High Court granted Shamala actual (day-to-day) custody of the children on the condition that she must not influence their religious (Islamic) beliefs, e.g. by exposing them to her Hindu faith.
Shamala’s case brought home the point that the constitutional role of the civil High Court as the protector of the rights of the ordinary citizen was fast becoming illusory. The implications of this case became the rallying force that drew together a small number of concerned NGOs and members of civil society and, by May 2004, gave life to the coalition known as Article 11.
In June, 2004, Article 11 organised a half-day public forum in Kuala Lumpur with a view to raising public awareness about the ramifications of Shamala’s case and how it impacted on the rights of citizens.
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