Tuesday, May 17, 2016

Malaysia Kini :- Ex-judge: Courts must not fear syariah agencies in conversion cases

Islam is about justice, mercy and compassion, but such principles are not reflected in the way the religion is administered in Malaysia.

This can clearly in cases of unilateral conversions, including the one involving kindergarten teacher M Indira Gandhi, whose three children were converted by her former husband without her consent or their knowledge, says former Sessions Court judge Noor Farida Ariffin.

“Let's try to salvage the image of our religion. As a concerned Muslim, I am so distressed and perturbed by the fact that we have been so unfair to non-Muslims.

“Islam is all about justice, mercy and compassion, but we don’t see that in the way Islam is being administered,” Noor Farida told Malaysiakini.

Specifically, Noor Farida referred to the Court of Appeal decision last Dec 30 that overturned, on a technicality, a High Court ruling quashing the unilateral conversion of the three children by their now Muslim father, Ridhuan Abdullah.

In a majority decision, the three-man bench headed by Justice Balia Yusof Wahi also ruled that the civil court has no jurisdiction to hear the children’s conversion, which it said was solely the purview of the syariah court.

However, Noor Farida argued that the decision is unfair to Indira and highlights weaknesses in the country’s administration of justice.

“The result is not fair to her… because, to me, when they say that they have no jurisdiction, that is an abdication of responsibility (by the civil court).

“What surprised me is that they (the judges) bound themselves to the Perak State Enactment. The civil court is not there to apply syariah law,” said Noor Farida, who now heads G25, a civil society group comprising retired civil servants and eminent Malaysians.

She cited provisions under Section 50 of the Perak State Enactment 2004, which confers jurisdiction to the syariah court.

Malaysian Bar president Steven Thiru had previously argued that the Court of Appeal’s reliance on Section 50(3)(b) of the 2004 Enactment was “misplaced” because it clearly states: “The Syariah High Court shall… in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims…”

When dealing with matters of conversion, Noor Farida also said the requirements would be for a person to recite the Muslim declaration of faith, provide consent, as well as have a witness.

“But if you are a child, how can you consent? And on top of that, they were not even present,” she stressed.

Indira and Ridhuan’s children – then aged 12, 11 and 11 months old – were converted without their presence and without Indira’s knowledge.

The youngest child, now eight years old, was snatched away from Indira () and has stayed with Ridhuan ever since. Indira has not seen her daughter for the past seven years.

“In that case the parents can convert them. But because of the Subashini case, unfortunately, the Federal Court now defines that ‘parents’ mean just ‘a single parent’.

“That was a hurdle they did not manage to overcome because of their decision, which I feel was erroneous,” Noor Farida added, agreeing that Indira was denied her constitutional right to legal redress.

The Subashini Rajasingham vs Saravanan Thangathoray case in 2007 saw the Hindu wife instructed to seek recourse through the Syariah Appeals Court to stop her Muslim convert husband from converting their children without her consent.

‘Law reforms necessary’

The cabinet had in 2009 decided against unilateral conversion of minors but progress on proposals to amend the relevant laws have been very slow.

Among others, Minister in the Prime Minister’s Department Nancy Shukri had reportedly said that Putrajaya plans to table in Parliament amendments to the Law Reform (Marriage and Divorce) Act 1976, the Administration of Islamic Law (Federal Territories) Act 1993 and the Islamic Family Law (Federal Territories) Act 1984.

This is to ensure that issues like child custody, alimony and division of marital assets are resolved in the court in which one’s marriage was registered.

In acknowledging necessity of ongoing attempts to amend the relevant federal laws, Noor Farida also said there is a proposal by the Negeri Sembilan state government that could be taken into account.

The proposal is any person who is married, and wanting to convert to Islam, must first go to the civil court under which his marriage is registered and resolve outstanding matters.

This would include divorcing the non-Muslim spouse and settling issues of maintenance, custody and others.

“Once that is settled, then the conversion can be registered. Then it is fair to everyone.

“The first principle of Islam is justice… everywhere in the Quran there is talk about justice,” she added.

‘No need for special courts’

Other proposals mooted include the setting up of a special court to jointly hear cases involving a Muslim and non-Muslim couple.

In neighbouring countries, such as Indonesia, specific provisions or entire laws can also be challenged in a Constitutional Court to push for amendments to be made.

However, Noor Farida argued against such a proposal.

“I am totally against the idea of a joint court because the separation of powers under the law is very clear in the Federal Constitution.

“All the court needs to do is to apply the law and to bear in mind that the Federal Constitution is the supreme law. It has to apply civil laws,” she said, adding that she was shocked by the Court of Appeal’s decision in Indira’s case.

Noor Farida said it is also pointless to set up a Constitutional Court as this function is already being carried out by the Federal Court – that is to interpret the law.

“But, as I said, they need to interpret civil law and not syariah law as the separation of powers is very clear under the Federal Constitution.

“We just need courageous judges. Unfortunately, when it comes to religion, they are very reluctant… they don't want to offend the syariah authorities,” she said.

“They bend over backwards to avoid making a decision, or decisions that would make people perceive syariah law as a separate law,” she added.

This reluctance, she noted, was despite Article 4 of the Federal Constitution recognising the syariah court as a subordinate court.

The Federal Court last month instructed inspector-general of police Khalid Abu Bakar to arrest Ridhuan, after having found the committal order against him issued by the High Court in Ipoh to be justified as he had failed to bring the youngest child to the jurisdiction of the court.

However, the police have failed to locate him, saying that Ridhuan’s current whereabouts are unknown.

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