Judge’s Interpretation Creates Conflict
The Civil Court’s decision that it did not have the jurisdiction to review the Syariah Court’s decision on the conversion status of M. Moorthy or his Muslim name, Mohamad Abdullah, continues to fuel debate.
Following this case, the non-Muslim public has urged the government to review and amend Article 121(1A) of the Federal Constitution, which separates the respective jurisdictions of the Civil Court and the Syariah Court. They believe the amendment will resolve the conflict. The Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS) is one of the parties leading this appeal.
“Our concerns are the effects of conversion and the court’s interpretation of the freedom of religion which is guaranteed by the Federal Constitution,” said Rev. Wong Kim Kong who is the Chairman of the MCCBCHS Special Taskforce Article 121 (1A) which was formed after the Syariah Court ruled that Moorthy had converted to Islam.
In an interview with journalist NOOR AZAM SHAIRI, Rev. Wong shared the various concerns of the non-Muslim society on the issues arising from this religious conversion case. The interview was conducted at his office in Petaling Jaya a day before Prime Minister Datuk Seri Abdullah Badawi announced that Article 121(1A) would not be amended.
What are the concerns of the non-Muslim public in this issue?
Human rights relating to the freedom of religious choice, especially in the case of someone who converts to Islam and the effects upon family members in the question of inheritance and automatic conversion of children below 18 years of age.
We are concerned that some judges do not have the professional courage or judicial understanding of law to enforce the Federal Constitution and interpret Article 121 (1A) and other laws touching on the rights of Muslim and non-Muslims.
That is our main concern, especially when a judge (in the Mohamad @ Moothy case) ruled that the Civil Court did not have the jurisdiction over the Syariah Court’s decision.
The situation was aggravated when a Senior Federal Counsel made a weighty statement that there was no legal remedy (for non-Muslims), while he should have acted freely and given priority to public welfare. The statement was shocking.
So the issue is not conversion per se, but the effects of conversion?
Firstly, the effects of conversion according to existing laws, and secondly, the court’s interpretation of the Federal Constitution and other laws which violate human rights.
This is a human rights issue, an issue of the judge’s duty and responsibility and of the partiality of the Attorney-General’s Chambers. These worries lead to the perception that Syariah Law will become the supreme law of the land. There is a perception that this is the intention of some parties.
What are the effects of conversion which cause concern?
Firstly, the non-Muslim spouse (husband or wife) and children of a Muslim convert will not inherit the convert’s property. The property will pass to a Muslim heir or, if there is no heir, it will be handed to the Islamic Council. Secondly, children below 18 years of age will automatically be considered as Muslims.
The interpretation is that a person who converts to Islam stays in Islam forever. The children become Muslims indirectly because their parent has embraced Islam and this cannot be changed. A person may not practise Islam at all but because of his/her parent’s choice and decision, he/she becomes a Muslim.
Religious belief is a question of choice. If a person believes in the tenets of Islam, he/she has the right to enter Islam. But the children have not made that decision. Still they become part of the decision of their father or mother.
We are also concerned with the interpretation that implies that the Syariah Law is the supreme law of the land. This leads to confusion and eventually disturbs the harmony and stability of a family and the social structure.
This is a multi-racial and multi-religious country. We are concerned that these issues may jeopardise national integration and unity, the national image and finally the image of Islam. Surely we do not wish others to view Islam in this way.
But isn’t it true that a convert’s relationship with his/her family members is not disrupted totally? Father or mother remains father or mother, only that husband and wife cannot continue their marriage if the other partner does not also convert.
True, formal family relationships are not disrupted, only belief and understanding differ. But it is a problem if one of the married couple embraced Islam quietly but still lives with the partner as husband and wife. Are they not guilty of “proximity” (khalwat) according to Islam?
If one of the married couple chooses not to embrace Islam, this means that the relationship is severed. I see this as an interference to the family unit which leads to disharmony among family members.
What should be done if a person wishes to embrace Islam?
Every person should be given the freedom to choose his/her religion. If a husband wishes to embrace Islam, he is responsible to discuss the matter with his wife. We should give them the opportunity to dialogue, discuss, voice their views or indeed quarrel until there is a consensus, hopefully a positive one.
If someone wishes to convert, he/she will convert anyhow but at least the matter has been discussed with the spouse. But the unfortunate fact is that religious conversion affects the wife, whether or not she agrees with her husband’s action.
Therefore the government should find a way to protect the wife and children. If such a solution can be found, no one will remain worried. What is worrying right now is that their interest in the question of inheritance is not protected.
But all the disputes arising from the Moorthy case assume that his family is against the conversion?
We must be clear that they oppose the secrecy and the lack of evidence that the conversion occurred.
Religious conversion that is done quietly is a cause for concern?
Yes. We do not oppose conversion to Islam or any other religion because Article 11 of the Federal Constitution allows it as a right. The same Article also allows the propagation of Islam to anyone. It’s only that we cannot allow conversion by force or without ethics. What I mean is we deceive others to accept our beliefs. This is also what I often emphasise to my friends who are Christian leaders.
What is your suggestion?
In the case of conversion to Islam, if there are provisions in the law that protect third parties, there is no problem. Religious conversion is an individual’s choice; it’s okay if it affects only the convert himself/herself. But if it affects third parties, the conversion must be transparent.
It is my opinion that the government should pass laws that take care of the welfare of couples, children and heirs. To me this is enough to diffuse the present tension.
Openness and transparency is also important in preventing future confusion, for instance in the question of burial. To me, if a person holds to a certain understanding or religion, he/she should not be afraid to testify to the belief.
Christian baptism for example is a declaration of one’s belief.There are two matters here: Firstly, it will avoid confusion, and secondly, it declares a person’s belief. Why should conversion to Islam be kept a secret?
Is there anything that prevents a person from embracing Islam?
There is none. I believe that Article 11 of the Federal Constitution accords every person the freedom of religion. I also believe that religious belief is an individual choice. However, before a person chooses a religion that he/she wishes to embrace, that person should first of all weigh its “pros and cons”.
Recently, while having kuayteow at the roadside at Alor Star, I had a conversation with a durian seller who indicated an interest to embrace Christianity. But he said he had not done so because he could not leave his old habits – womanising, gambling and smoking.
It’s the same with all religions, there are things we can do and things we can’t do. It’s up to the person to choose. It’s an individual choice. I even say the same to my children, that they can choose their own religion when they turn 18.
I feel that we need to be clear on this matter. We do not oppose conversion to Islam, and we do not oppose Islam. I understand that some sectors of Muslims feel that we are trying to interfere in Islamic matters. No. If a person is a Muslim, we agree that he/she is within the jurisdiction of the Syariah and should be tried by the Syariah Court.
Isn’t it the Syariah Law that determines whether a person is a Muslim?
But if the case involves non-Muslims, it ought to be heard in the Civil Court because non-Muslims will not be given a hearing at the Syariah Court.
But according to existing laws, there is nothing that prevents non-Muslims from being heard in the Syariah Court?
The interpretation of that law is the confusing issue at hand. An appeal has to be made ex-parte (as if) because as non-Muslims, their testimonies and evidences cannot be considered.
Besides, we also fear that the Syariah Court’s judgements may be partial, as has happened in a number of instances. This is why we appeal that the Civil Court give remedy to non-Muslims who are caught in Islamic matters.
There is a call for Article 121 (1A) to be amended to revert to its pre-1988 form.
In my opinion, we ought to find a good solution that does not hurt Muslim sentiments. The Position of Civil Court and Islamic Law
You have expressed numerous concerns of the non-Muslims. The concerns of Muslims, on the other hand, is that the Civil Court is not qualified to decide on matters relating to Islam, based on our nation’s legal history.
To me, if a person is a Muslim, he is subject to the jurisdiction of the Syariah Court. For example, if Moorthy’s conversion had been proven earlier, an Islamic burial would be his right. But the issue at hand caused an uproar because it is confusing and unclear, and eventually raised difficulties.
The stand of MCCBCHS has changed. At first we insisted that the provision of the Federal Constitution had to be amended. But after discussing the matter in detail and considering the social situation, we are ready to cooperate with the government to study the matter and share our views.
We mustn’t forget that the 1988 amendment was made, among other reasons, to prevent Muslims from bringing a case already decided by the Syariah Court to the Civil Court.
For example, a child asks for something from the mother. The mother does not acquiesce to his wish. When the father returns home, the child asks for it from the father, and the father gives it. In the end, there is conflict.
The rationale behind Article 121 (1A) is to protect the interests of Muslims but the boundary of that law is too wide and we have already gone beyond the intended boundary. What the government needs to do is to make an amendment or clarification to ensure that if an issue involves non-Muslims, the Civil Court should be given the jurisdiction.
But is the Civil Court qualified to decide? Do we not learn from the cases decided before 1988?
What I mean is that if a case involves only Muslims, the Syariah Court has absolute power. But if it involves the welfare of non-Muslim third parties, such as in the case of Kaliammal who did not believe her husband had converted to Islam, the case should go to the Civil Court.
My question is whether the Civil Court possesses what is called the brain and the common sense to decide on matters relating to Islam and the welfare of Muslims.
In the case at hand, the court only has to make a judgement on the evidence of conversion, not on how to interpret Islamic laws. We should not confuse ourselves on this matter.
The Civil Court should not interfere in Islamic matters. The Syariah Court has jurisdiction over personal matters of Muslims relating to their religion.
I would like to reiterate that this is not an issue of religion or clash of religions. We must be clear. I also tell this to my pastors. I remind them that Muslims are our brothers too.
Isn’t the Federal Constitution clear on this matter, on the separate jurisdiction of the two Courts?
Only as long as a case affects only the welfare of Muslims and Islamic matters. But is the interpretation clear? If it is, certainly the judges would not interpret this law in the opposite way, and the fact that they did shows there are loopholes. That is what we need to correct now. What is important for us to think about right now is how at the same time we can protect the interests of non-Muslims. We ought to be objective in this matter.
In the matter of religious conversion, isn’t it true that only Islamic laws can determine whether a person has embraced Islam? In this matter, surely the place to decide this is not the Civil Court but the Syariah Court.
The determination depends on the evidence. In this case, perhaps the law ought to define what makes a person a Muslim.This definition will act as a guideline for judges, whether at the Civil Court or the Syariah Court. My view is that as long as a person hasn’t been proven to be a Muslim, we cannot impose Islamic laws on him/her. The question is how to prove and who is qualified to decide.
Are these the issues that need to be clarified?
Yes. If the law is clear on this matter, as some parties claim, how then did such a problem arise?
Or is this the wrong of those involved, such as the judge and the Senior Federal Counsel? If so, then action must be taken against their interpretation.
LESSONS FROM THE MOORTHY EPISODE
What are the lessons from the whole episode?
Up to this point, I am happy because the public are mature enough to discuss these issues without getting angry. We must preserve this maturity. If we wish to become a developed nation, we must be seen as a progressive society.
Besides, we need to discuss the matter objectively. I always remind my non-Muslim friends that we ought to always think of the feelings of the Muslims. At the same time, there will surely be extreme groups, and if they want to lash out, they just do so. Our maturity and readiness to exchange views and lend a listening ear is a healthy thing. If we feel the law is already complete and clear, we ought to give the assurance from the legal point of view so that there will be no future misinterpretation.
We need to clarify the difference between the Civil Court and the Syariah Court, and their respective jurisdictions. If lawmakers think about this deeply, they will find a solution.
Meaning?
If the government and parties involved have the political will to admit that we are facing a dead-end road and wish to correct the problem to attain justice, it can be done.
What does this whole episode tell us about our country?
It shows that many issues can disrupt religious harmony. We should not take it for granted that all is well. As long as this is a multi-racial, multi-religious and multi-cultural country, problems will arise.But we must be prepared to resolve these problems with maturity. This episode tells us that the government gives freedom to the citizens to voice their views. The citizens also exhibit maturity in giving their views and listening to one another’s views.This is a good sign. But we must still watch out for a minority who are waiting to exploit the issue. I feel that the government must handle them without favour or fear. If it submits to their demands, we will face problems.
With this maturity, what do you see as the future of inter-religious dialogue?
We need a platform for common discussion. We can express our views but in the end we must be ready to agree to disagree. To me, inter-religious dialogue and the inter-faith commission (IFC) proposed earlier would be the best platforms. It should not be seen as an opposition of non-Muslims to Muslims. Some parties interpret it that way, as if we are challenging Islam. No.But we do not know whom to approach who represent the view of Muslims. I am not saying there is no unity but there is no specific authoritative body that truly represents the Muslims. |
