Conversion, Custody, Courts' Confusion

NECF Malaysia "For Your Intercession" No. 15 – May 21, 2004 www.necf.org.my.

Conversion, Custody, Courts' Confusion

Can a country have dual-legal system?

In terms of family matters in Malaysia, Muslims come under the Syariah judicial system while non-Muslims come under the civil judicial system. The application of these two legal systems is mutually exclusive according to Federal Constitution Article 121 and 121A. A few questions have been raised: which system has the overriding jurisdiction in the context of conversion into Islam by one of the spouses to a civil marriage? Have the non-converting spouses been granted equal justice? What happens to the children?

It was 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 (Apr 13, 04) on High Court’s dismissal of the application of a Hindu mother, Shamala, to nullify her children’s conversion to Islam, once again demonstrates the impediment of our civil judicial system in protecting the rights of non-Muslims. Shamala was told that "Syariah Court was the qualified forum to determine the status" of her two children.

While the civil court declined to make a decision, Syariah court had no jurisdiction to hear the case of non-Muslims, the mother was reportedly to be advised by judge Datuk Faiza Thamby Chik to seek help from Federal Territory Religious Council (Majlis Agama Islam Wilayah Persekutuan) to resolve the matter (April 13, 04).

What is the legal status of 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, commented that the right to decide 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 had filed an application in the Civil Court for custody of her children on 31 December 2002. Meanwhile the Selangor Syariah High Court had first given ex-parte custody order of the children to her husband. The Syariah Selangor High Court also issued a warrant of arrest against Shamala for not appearing in the Syariah Court. The Civil Court then gave Shamala's husband interim access on 17 April 2003. The husband was allowed to take the children on Saturday and return them on Sunday. Then the Selangor Syariah Court gave the husband the full custody order on May 8, 2003.

The husband used this Syariah Court Order as a basis not to return the children. Only after Shamala commenced committal proceedings, the children were returned to Shamala.

Without the civil court’s intervention, Shamala is facing or may face disadvantages as highlighted by New Straits Times on Sept 15 2003:

1. 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.
2. She is/may be deprived of the right to have a say in the custody of her children as the Syariah Court has predominantly given custody to the converted husband without taking into consideration the mother's rights.
3. She has been deprived of the right to have a say in the dissolution of her marriage as divorce proceedings was initiated in the Syariah Court without her attendance or participation.

In other words, Shamala is subject to the jurisdiction of a judicial system that has no jurisdiction over non-Muslims.

Not only Shamala’s case best illustrates the dilemma of dual-legal system and infringement upon the rights of non-Muslim women when their spouses embrace Islam, it raises the imminent issues on the question of public confidence on the law of the land and the judiciary. It is proposed that a Constitutional Court be immediately set up in Malaysia to decide on matters of this nature.

Bear in mind that the Prime Minister has more than once said that the government will defend the Constitution and laws of the country and to 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 the matter, the practical effect of that decision is exactly one of allowing an injustice to take place" (Aliran Monthly, 2004: Vol. 24 No. 4).

On May 7^th, 11 NGOs included MCCBCHS, Catholic Lawyers Society, INSAF, Bar Council, Catholic Bishop Conference, Council of Churches, Pure life Society, Sisters in Islam (SIS), and Women’s Action Organization (WAO) met in response to the decision of the KL High Court. They are committed to advocate for the principles as guaranteed in the Federal Constitution and Human Rights Conventions (NST) 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.