23 March, 2007

Islamic experts tell non-Muslims not to be prejudiced against syariah courts

Islamic experts said non-Muslims should not be prejudiced against syariah courts, as Islam is a religion which assures justice for all.

They said non-Muslims should not be worried about appearing before the syariah court to resolve matters concerning Muslims or Islam, as it is not given that the court will side with the Muslim party.

These are the views of two state muftis and a syariah court lawyer, who practises civil and criminal law. They said that if the civil court had decided for a non-Muslim to seek justice at the syariah court, he or she should do so without any fear or prejudice.

They were referring to the Court of Appeal decision last week to dismiss the appeal by R. Subashini, a Hindu, to stop her Muslim-convert husband, Muhammad Shafi Saravanan Abdullah, from going to the syariah court to dissolve their marriage and convert their children.

In the majority decision by a panel of three judges, Subashini was told to seek recourse through the Syariah Appeal Court.

The Bar Council and several non-governmental organisations have said this was unconstitutional as the syariah court only has jurisdiction over Muslims.

Terengganu mufti Datuk Ismail Yahya said: “We know non-Muslims are worried that the syariah court will always side with the Muslims but do not fear, there is still hope that non-Muslims could win the case.”

He said just like the procedures in the civil court, the syariah court’s judgment would be made based on the facts presented.

Ismail also said there were situations that could allow the children to be placed under the custody of their mother although she was not Muslim.

“The syariah court will decide in the best interest of the children, based on their welfare. If the non-Muslim mother is more fit to take care of them, the court will give her the custody,” he said.

Perlis mufti Dr Mohd Asri Zainul Abidin noted that during the time of Saidina Ali, one of the early Muslim caliphs, a Jew had won a case against Ali in an Islamic court.

He said the prejudice against the syariah court stemmed from two reasons – non-Muslims do not understand that Islam promises justice for all, and the syariah courts themselves sometimes fail to reflect the level of professio­nalism required by Islam.

Syariah Lawyers Association adviser Muhammad Burok described the Court of Appeal’s decision as a recognition for the syariah court.

Commenting on the argument that the Federal Constitution is the supreme law of the land and any law passed after indepen­dence which is inconsistent with the constitution shall be void, he said:

“Syariah law is not a written law as it is based on Allah’s revelation. Obviously, it did not come after indepen­dence. That is how I see it. But, in Malaysia, it becomes a problem because the syariah law is written.”

When it was pointed out that this may not be acceptable to non-Muslims, Muhammad said: “They have to learn to accept it.”

He invited non-Muslims to learn to accept the syariah law, saying if Muslims can go to the civil court, there was no reason why non-Muslims cannot go to the syariah court.

Ismail, on the other hand, cited Article 121 (1A) of the constitution, which states that the civil court has no jurisdiction in matters within the syariah court’s jurisdiction.

Mohd Asri said the argument of whether it was unconstitutional or not was a matter of interpretation.

He said to him, being a Muslim, the syariah law was the supreme law as it was based on the Quran.

In Subashini’s case, although the marriage was a civil contract, Islam would still recognise it because the couple were non-Muslims at that time.

“Islam does not require a couple who have converted to Islam to repeat their marriage procedure in the Islamic way. Islam does not consider their children as illegitimate. Islam recognises their marriage,” he said.

“All courts deliver justice, more so the syariah court. All lawyers and judges must hold on to this fact,” Muhammad added.

Civil laws for civil marriages only suggests MP

Registered civil marriages should be mitigated by civil laws only, says Wong Nai Chee (BN-Kota Melaka).

“Couples have been given the choice to register their marriages under civil laws or syariah laws. If you have chosen to register under civil laws, then you should be answerable under the civil laws when one party converts,” he said in his debate on the Royal Address in Parliament today.

He said there was a “loophole” in the system when one half of a couple who married under the civil laws converted to become a Muslim, the other half is left without legal recourse.

“Although (if one) has converted as a Muslim, you should carry out your obligation to your wife and children under civil laws,” he said.
The debate on the jurisdiction of syariah and civil courts were highlighted again when the Court of Appeal on March 13 dismissed non-Muslim R. Subashini’s appeal to stop her Muslim-convert husband – Muhammad Shafi Saravanan Abdullah – from going to
the syariah court to dissolve their civil marriage and convert their children to Islam without her permission.

Wong suggested amending Article 12 (4) which stipulates that “a person under the age of 18, the religion or faith should be decided by his guardian or parent”.

“Although Schedule 11 says that “parent” refers to singular and plural, but the courts have not been using it anymore. So let’s just amend the word ‘parent’ to parents’,” said Wong, a lawyer.

Datuk Alwi Che Ahmad (BN-Ketereh) said the perception that syariah courts is only for Muslims should be changed while Salahuddin Ayub (PAS-Kubang Kerian) said the question of non-Muslims not having remedy in syariah court should not arise.

Wong stressed he did not question which laws were fairer but “the option one chooses to seek judicial redress”.

“I don’t question whether syariah court is just or not. What I said was the options they have. If they have already chosen a particular system, they should not be asked to go to another system as it involved two totally different laws,” he added.

(Source: Sun2surf)



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