Duty to hear conversion cases, civil courts told
January 07, 2013
The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) noted that judges in the civil courts have been reluctant to try religious disputes involving Muslims, and called on them to uphold the rule of law so as not to deny non-Muslims their right to legal resolution.
“The MCCBCHST is of the view that it is the court’s duty to hear such cases and not deny jurisdiction to them,” it said in a statement. It lauded Chief Justice Tun Arifin Zakaria’s remarks last November on the rule of law and the judicial system, saying: “There has to exist a clear separation of powers between the judiciary and the other two arms of government in order to uphold the rule of law.”
But the MCCBCHST pointed to the Federal Court’s 2007 landmark ruling in the case of Hindu mother Subashini Rajasingam who went to court in a custody battle against her husband, Saravanan Thangathoray, after the Hindu-turned-Muslim moved to dissolve their marriage and convert their second child in the Syariah Court.
A three-man Bench led by Tan Sri Nik Hashim Nik Ab Rahman had thrown out the mother’s case and ruled that either parent has the right to convert a child of their marriage to Islam.
“This ruling has caused untold hardship and misery to hundreds of parents,” the interfaith panel said, adding that the decision ran counter to the Guardianship of Infants Act 1961 and a provision in the Federal Constitution that awarded equal custody to either parent, regardless of their religious affiliation.
MCCBCHST highlighted another instance where a judge in the superior court was reported to have advised a non-Muslim complainant to be open about seeking recourse in the syariah court despite Islamic laws being applicable only to Muslims in Malaysia.
It noted the Cabinet had in April 2009 come up with two key policies to address the issue, saying a child must follow the religion practised by both parents even if one of them embraces Islam later; and that marriages under civil law can only be dissolved in the civil court and not syariah court.
The Cabinet decision was never enforced after several religious leaders objected.
“Let us all follow and uphold the constitution both in words and deed and strive to find a just solution to the conversion cases,” MCCBCHST said.
Malaysia’s dual-track court system has resulted in overlapping gray areas that civil activists say have impinged on the constitutional rights of non-Muslims.
Civil liberty activists and lawyers have noticed a trend that the judiciary has been putting Islamic law above all other laws in Malaysia, signalling an erosion of the Federal Constitu