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Sharia Jurisdiction Challenged in Divorce Case in Malaysia

by Jasmine Kay

4/16/07 Malaysia (Compass Direct News) – The Hindu wife of a Muslim convert is appealing to the highest court in Malaysia after a lower court directed her to seek recourse through the sharia (Islamic) court system over the dissolution of her civil marriage and the alleged conversion of her younger son to Islam.

The case holds implications for Christians and members of other minority religions in Malaysia , where non-Muslims such as Lina Joy, a Christian convert out of Islam, are often unduly subject to Islamic regulations.

Subashini A/L Rajasingham (Malaysian Hindus have only one name but are also identified as “the daughter of,” A/L for short, or “the son of,” denoted A/P), 28, and her estranged husband Saravanan A/P Thangathoray, 31, were married as Hindus in a civil ceremony on July 26, 2001. They have two sons – Dharvin Joshua, 3, and Sharvin, who is a year old.

Subashini claims Saravanan converted to Islam in February 2006 or sometime earlier. In July of that year, she received a notice that her husband – whose Muslim name is Muhammad Shafi Abdullah – had commenced proceedings in the Sharia High Court for custody of their elder son, who also allegedly had converted to Islam.

At that point, Subashini applied to the Civil High Court for an injunction to restrain her husband from converting their second son to Islam and from commencing or continuing with any proceedings in the sharia court in regard to their marriage or children.

The Civil High Court granted her an ex-parte injunction but later dissolved it.

Subashini then took her case to the Court of Appeal. On March 13, in a two-to-one majority decision, the court dismissed her appeal.

On March 30, however, the appeals court granted Subashini a temporary injunction pending the outcome of another hearing in the Federal Court – the highest court in the land – on May 14.

Public Opinion

Bishop Paul Tan Chee Ing, executive committee chairman of the Christian Federation of Malaysia, expressed concern that the civil courts had directed a non-Muslim to submit to the sharia courts.

Datuk Chee Peck Kiat, President of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, told reporters from The Star that, “Religious laws cannot be applied to people who do not profess that religion.”

For the whole of last week, the non-Muslim religious communities represented by the council held special prayers “for the restoration of religious freedom” in the country.

On April 3, Subashini’s husband, Saravanan, lodged a complaint against the Bar Council, non-governmental organizations, non-Muslim religious bodies, politicians and a few individuals for allegedly making prejudicial remarks against the Court of Appeal decision.

But Ambiga Sreenevasan, chairperson of the Bar Council, dismissed Saravanan’s argument as baseless.

Justice for Minorities

Subashini’s case fuels a continuing debate in Malaysia on the ability of the country’s dual legal system to properly administer justice to its non-Muslim citizens.

While the federal constitution guarantees freedom of religion for all citizens, some judges have refused to provide recourse to non-Muslims due to their interpretation of Article 121(1A) which states that the High Courts and the inferior courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Sharia Courts.

“Does this mean there is an extension of sharia laws to non-Muslims?” Karpal Singh, an opposition member of Parliament, asked recently in response to Subashini’s case. Singh has called on the government and Parliament to urgently resolve issues arising from the overlap of jurisdictions between civil and sharia courts.

In 2003, another Hindu woman, Shamala Sathiyaseelan, contested the alleged conversion of her children after her husband converted to Islam. As in Subashini’s case, judges told Sathiyaseelan she could not seek redress in the civil courts. She was advised to seek help from the Majlis Agama Islam Wilayah Persekutuan (Federal Territory Islamic Religious Council) instead.

Similarly, in December 2005, judges refused to entertain a suit by the Hindu family of national hero M. Moorthy challenging his conversion to Islam. The family was told they could not seek justice in the civil courts. Consequently, his body was taken away by the Islamic authorities and given a Muslim burial.

In the case of Lina Joy, a Muslim who converted to Christianity in 1990 and is still fighting for legal recognition of her Christian status, the lower civil courts held that her conversion was a matter to be decided by the sharia court.

A decision on Lina Joy’s case is expected soon, Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim announced following a High Court ceremony on April 11.

Erosion of Minority Rights

The Subashini case highlights further erosion of minority rights. For decades, non-Muslim religious communities have had difficulty in obtaining approval to build places of worship.

While permits for mosques are issued almost without question, religious leaders of other faiths struggle to obtain building permits. Many resort to meeting in community halls and commercial buildings.

One Catholic church, The Church of Divine Mercy in Shah Alam, first applied for a building permit 30 years ago. Permission to build was finally granted in 2004. Solicitors for the church claim that the “long delay was solely due to the actions of the state authority in constantly relocating the building sites and revoking already approved building plans and designs.”

Hindus have also suffered. For years, Hindu temples – most of which are built illegally on government land – have been torn down by the authorities. Earlier this year, the Hindu community sought a court order to halt further destruction of temples; but the High Court refused to grant such an order. The issue has now gone to the Court of Appeal.

Significantly, the crown prince of Perak, Raja Dr. Nazrin Shah, recently called on all Malaysians to defend and promote the integrity of the federal constitution. Raja Dr. Nazrin identified this as a crucial first step towards nation building — a call that many Malaysians regard as “timely” in the light of present concerns, particularly among non-Muslim minorities.