Friday, November 12, 2010

The great Malaysian sidestep — The Malaysian Insider

NOV 12 — Today, the Federal Court sidestepped hearing five questions from S. Shamala by allowing her estranged husband’s objection that she must return to the country to enjoy the court’s protection.

She is apparently in Australia with her two children, who had been converted to Islam by her Muslim convert husband.

The questions she had asked are as follows:

1. Whether Section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires (beyond the powers) of Article 12 (4) of the federal constitution (specifically concerning the right to determine the religion of the children under the age of 18 by the parent or guardian) and Article 8 regarding equality rights;

2. Whether the same section in state law is inconsistent with federal law, namely Section 5(1) of the Guardianship of Infants Act 1961, and is therefore invalid;

3. Regarding Article 121 (1A) of the federal constitution, where a custody order for children is made, which court, between the Syariah Court and the High Court, is the higher authority?

4. When there is conversion of children from a civil marriage to Islam by one parent without the consent of the other, are the rights to remedies for the non-Muslim parent vested in the High Court?

5. Does the Syariah Court have jurisdiction to determine the validity of conversions of minors into Islam, once it had been registered by the Registrar of Muallafs (Registrar for newly-converted Muslims)?

The Federal Court evaded the issue by not answering any of the questions, and Malaysia lost an opportunity to figure out the testy and choppy waters of the legality of under-age conversions.

More than that, the implication of the Federal Court decision is that more Shamalas will rely less and less on the courts and, instead, take matters in their own hands. They will flee Malaysia for the courts afford no protection, let alone answers.

Civil courts have, even before this decision, abdicated their rights to hear conversion cases to Syariah courts. So which non-Muslim spouse is going to hang around and be a party to any civil court proceeding where the outcome is known?

This is the harsh reality facing non-Malay or non-Muslim spouses in cases where their partners have converted to Islam without informing the other partner.

Like everything else in racially-polarised Malaysia, this is the question: Can Malaysians expect justice from those who are not from same race and religion when it comes to matters of the faith?

The Federal Court’s silence is loud and deafening. They sidestepped the issue. The people will sidestep the law. And distrust will fester.