I noted in my last blog that the leading judge in the Malaysia’s Highest Court facetiously commented that it is not right if any party gains an unfair advantage in a court dispute. He added, “The Federal Court said it cannot adopt a “fugitive doctrine of heads I win, tails you lose” in deciding the basic rights for either parent.”
Well said indeed. Unfortunately, we are not convinced of the sincerity of such rhetoric (regardless of whether it comes from the top judge or the de facto Law Minister) so long as non-Muslims continue to suffer unfair disadvantage (an euphemism actually) in their legal disputes with Muslim (converts). We recall instances when the police, the Muslim authorities and court officials collude and contemptuously brushed aside the legitimate rights of non-Muslims in disputes over child custody, family inheritance and burial rights/rites. To use, an ugly American neologism – there is systemic discrimination against non-Muslims in the Malaysian legal system.
The question is: Can there be justice for non-Muslims under a shariah compliant/dominated legal system?
Parent Uses Syariah Court Order to ‘Snatch’ Her Child
Malaysiakini Nov 16, 2010 LINK
A worrying trend of child snatching has emerged in recent years, enabling a Muslim convert to ‘seize’ his or her child from a non-Muslim parent with help from different agencies. Making this claim, Kedah PKR Youth vice-chairperson Gooi Hsiao Leung said the child is then converted to Islam without the non-Muslim parent’s consent, leading to problems from the point of law.
“The Muslim parent is able to do this because he or she manages to secure a Syariah Court order, which encroaches on the constitutional and civil law rights of the non-Muslim parent over his or her child,” said Gooi (right).
He said this creates a constitutional problem because the rights of a non-Muslim parent are “subjugated” by the Syariah Court.
This forces a non-Muslim to submit to the authority of the Syariah Court when its jurisdiction can only apply to Muslims, he noted. Gooi also said incidents of child snatching are occurring with the help of other institutions, such as the police and state religious councils.
“All we are saying is, if a marriage has been contracted under civil law, any matrimonial dispute, including custody of children, should be decided by the civil court,” he said.
“The Syariah Court should stay out of it and not encroach into the jurisdiction of the civil court.
“It is a worrying trend that we’ve seen recent developments where the Syariah Court continues to challenge the jurisdiction of the civil court.”
Case in point
Gooi, a lawyer by profession, was referring to one of his recent cases where Muslim convert, Fatimah Fong, 28, recently took away her seven-year-old daughter from school. The child, Tan Yi Min, had been living with her father, Tan Cheow Hong, 36, since 2007, after the couple separated. During this period, the child’s mother had hardly visited her, and Yi Min has been under the care of her father, his mother and sister, who live in Butterworth. Fatimah resides in Kuala Lumpur.
Gooi said the teachers and principal of Yi Min’s school had tried to prevent the child from being taken away, but failed because the mother produced a Syariah Court order.
“The mother came with the Syariah Court order from Shah Alam and was accompanied and aided by representatives of the religious council and police,” he said.
“The father was never previously informed of the Syariah Court proceedings and there was absolutely no reason why the wife had acted in such secrecy and haste. The situation turned ugly but eventually the child was taken away. Since then, my client has filed for custody before the civil court and the hearing is on Nov 24.”
Gooi said the matter appeared to have been planned right from the beginning, where the Muslim parent took the “backdoor” approach to obtain the child from a non-Muslim parent.
He added that his client’s ex-wife only filed for divorce in the Syariah Court on Oct 26. The very next day, on Oct 27, Fatimah obtained an ex-parte order to get custody of the child.
“What is worse now is, it is learnt, that she has converted the child to Islam without the consent of the non-Muslim father,” Gooi said.
Rows over conversion
Rows over conversion, including ‘body-snatching’ cases, are common in Malaysia, where Islam is the official religion. This involves cases where Muslim authorities clash with relatives over the remains of the dead, whose religion is disputed.
Last year, Malaysia disallowed the “forced conversion” of children to Islam to subdue unease among non-Muslims.
De facto Law Minister Mohd Nazri Abdul Aziz (left) had said then that the law would be changed so that children’s conversions would not be allowed without the consent of both parents.
The decision came in the wake of the highly publicised case of M Indira Gandhi, who estranged husband embraced Islam and then converted their children to the religion. She has since been granted custody of the children, although the youngest child has not been surrendered by her ex-husband. In addition, she has been given leave to challenge their conversion. Nazri said minors are to be bound by the common religion of their parents while they were married, even if one parent later becomes a Muslim. He also said that Islamic law would apply only from the point of a person’s conversion to the religion, and is not retrospective.