When it comes to family matters in Malaysia, Muslims come under the Syariah judicial system while non-Muslims go to the civil courts to resolve their disputes. The application of these two legal systems is mutually exclusive according to Federal Constitution Article 121. This has however raised some questions:
- When one party in a marriage converts to Islam, which system has the overriding jurisdiction in matters relating to their marriage?
- Will the non-converting spouse be granted equal justice?
- What happens to the children?
It has been reported that many non-Muslim women “whose husbands have converted to Islam have had their rights violated in areas like custody, maintenance and equal access to law” (NST, Sept 15, 03).
The most recent report (NST, Apr 13, 04) on a High Court’s dismissal of the application of Shamala Sathiyaseelan,a Hindu mother, to nullify her children’s conversion to Islam has demonstrated the impediment of our civil judicial in protecting the rights of non-Muslims.
(Shamala’s husband had converted to Islam to marry a Muslim woman and then converted the children’s religion to Islam without Shamala’s consent.) Shamala was told by the High Court judge that the “Syariah Court was the qualified forum to determine the status of her two children”.
The civil court declined to make a decision; however the fact is the Syariah Court has no jurisdiction to hear the case of non-Muslims.
What is the legal status of the marriage between Shamala and her husband? Technically, the marriage remains civil and is still valid. Lawyer Haris Ibrahim once expressed that one could not take civil marriage into the jurisdiction of the Syariah Court even if one of the spouses converted to Islam (NST, Sept 15 03). The fact that the husband has converted to Islam does not change the status of their civil marriage contracted on Nov 5, 1998.
Bar Council Chairman HJ Kuthubul Zaman Bukhari has commented that the right to decide a minor’s religion is “an issue of parental right, rather than an issue of religion” (Aliran Monthly, 2004: Vol. 24 No. 4).
There is also the problem of the issuance of contradictory orders. Shamala was given guardianship of their two children by the High Court on April 17 2003, but within three weeks, the Selangor Syariah Court issued a separate custody order to the husband. Which court order is superior?
Without the civil court’s intervention, Shamala is facing or may face disadvantages as highlighted by the NST, Sept 15 2003:
• Despite being an equal guardian by law, she is deprived of the right to decide the religion of her children as her husband had converted them without her consultation and agreement.
• She is/may be deprived of the right to have a say in the custody of her children as the Syariah Court has given custody to the converted husband without taking into consideration the mother’s rights.
• She is/may be deprived of the right to have a say in the dissolution of her marriage as divorce proceedings can be initiated in the Syariah Court without her attendance or participation.
In other words, Shamala is subject to the jurisdiction of a judicial system – Syariah – that has no jurisdiction on non-Muslims. Shamala’s case not only illustrates the dilemma of a dual-legal system and infringement upon the rights of non-Muslims when their spouses embrace Islam, it also raises the imminent issues on the question of public confidence on the law of the land and the judiciary.
Prime Minister Datuk Seri Abdullah Ahmad Badawi has reiterated that the government will defend the Constitution and laws of the country and safeguard the interests of ALL citizens regardless of age, gender, ethnic background and religion (Barisan Manifesto March 2004). However, if there is confusion within our judiciary system, and if judges are not able to administer justice without fear or favour, or decline to exercise the jurisdiction, where is our hope in defending the Constitution?
The Bar Council Chairman has rightly pointed out that “by declining to assume jurisdiction to hear Shamala’s application to nullify her children’s conversion, the practical effect of that decision is the same as allowing an injustice to take place” (Aliran Monthly, 2004: Vol. 24 No. 4).
On May 7, 11 non-governmental organisations met in response to the decision of the High Court in granting leave to Shamala’s husband to file an application of contempt against Shamala. They included the MCCBCHS (Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism), Catholic Lawyers Society, INSAF, Bar Council, Catholic Bishop Conference, Council of Churches, Pure life Society, Sisters in Islam (SIS), and Women’s Action Organisation (WAO). The groups are advocating the principles as guaranteed in the Federal Constitution and Human Rights Conventions and are seeking to meet with the Prime Minister.
All Women’s Action Society (AWAM) has also urged the Parliament to provide a remedy for the protection of the parental rights of non-Muslim mothers. Likewise, Wanita MIC and MIC Youth have called for legislative reforms to existing Federal laws for secular courts to protect the parental rights of non-Muslim parents if their spouses convert to Islam. – By Lim Siew Foong
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What You Can Do
• Pray: (See Prayer Digest for prayer points.)
• Act: Write, e-mail, contact your member of Parliament about your concern over this issue. Help to raise public awareness and consciousness of the problems faced by many people as a result of this dual-legal system. | |
