08 February, 2008

Court Decisions in Malaysia Threaten Non-Muslim Rights ?

Islamic burial granted despite family protests; one parent can convert minor children.


Malaysia’s non-Muslim minorities – 40 percent of the population – are increasingly alarmed over recent court decisions diminishing their burial and child custody rights.

In the latest case, the death of an elderly Chinese man on January 20 sparked a dispute when his family rejected Islamic religious authorities’ claim that he had converted to Islam. When the family tried to bring the case before the civil high court, it refused to hear the case on grounds that it did not have jurisdiction.

The sharia (Islamic law) court then ruled that the deceased had become a Muslim, and Islamic authorities proceeded to give him a Muslim burial.

Separately, last December the Federal Court – Malaysia’s highest court – told a Hindu woman that her husband, who had converted to Islam, could unilaterally convert their minor children to Islam without her permission.

Local observers have expressed concern over the recent court decisions and are questioning whether the country’s dual legal system is able to adequately protect the rights of non-Muslims, especially in instances where one spouse or family member converts to Islam. Under Malaysia’s dual legal system, all citizens are subject to civil laws, while Muslims are subject to sharia laws in religious, personal and family matters.

Irregularities

In the case of Gan Eng Gor, a 74-year old ethnic Chinese man who died on January 20, Islamic religious authorities reportedly removed his body from a Chinese funeral parlor after his eldest son, who had become a Muslim some years ago, filed a report claiming that his father had converted to Islam.

The rest of the family, including the widow of the deceased, disputed the claim. Islamic religious authorities then asked members of the deceased man’s family to appear before the sharia court to determine his religious status.

The family refused, claiming that the religious court had no jurisdiction over non-Muslims. The family chose, instead, to apply to the civil High Court to hear the case. Judge Azhar Ma’ah of the Seremban High Court, however, refused to hear the case on grounds that the matter fell within the jurisdiction of the sharia court.

On January 24, the sharia court released the corpse to Islamic religious authorities, who then accorded him a Muslim burial.

In an article carried on several websites, including that of the Malaysian Bar Council, Gan Hok Ming – one of the deceased’s children writing on behalf of the family – claimed that his father never prayed according to the tenets of the Islamic faith and had continued to eat pork and other non-halal foods prohibited for Muslims.

Islamic religious authorities claimed that the deceased made an oral declaration in Arabic accepting the Islamic faith. Gan questioned how this could have been possible when the deceased had lost his ability to speak after suffering a stroke in 2006. The family claimed that it had reports from three doctors to confirm his condition.

Gan also noted a number of “serious irregularities” in the conversion papers produced by the Islamic religious authorities. The conversion papers, which were dated July 3, 2007, lacked the signature of the religious officer before whom the alleged declaration of faith took place, as well as a signatory in the certification column.

Gan said his family had been unfairly treated. He appealed to the prime minister and higher Islamic authorities to review his father’s case.

“If there had been a conversion, we firmly believe that the Agama Islam (Islamic religious) authorities should have informed all members of the family,” he argued. “There should not be a fight over the body of [a] dead person.”

Subashini Case: Conversion of Children

In a case that could have far-reaching implications for Christians and adherents of other minority religions, last December 27 the Federal Court delivered a landmark decision granting a Muslim man the right to unilaterally convert his minor children to Islam without his wife’s permission. But Abdul Aziz Mohamad, one of three judges who heard the case, said the wife’s objections must be heard.

Significantly, all three judges unanimously agreed that the couple’s marriage and matters pertaining to custody of their children could only be resolved in civil court since the matrimony was contracted under the Law Reform (Marriage and Divorce) Act 1976.

Saravanan A/L Thangathoray and Subashini A/P Rajasingam were married as Hindus, and their marriage is considered a non-Muslim marriage even though Saravanan subsequently embraced Islam. The couple has two boys, 4-year-old Dharvin Joshua and Sharvind, 2.

The judges by a majority ruling argued that since Saravanan is now a Muslim, he had a right to seek divorce and custody claims from the sharia court. Nevertheless, the court ruled that the Islamic court decision will have “no legal effect” on his civil marriage.

The case was heard before federal court judges Nik Hashim Nik Abdul Rahman, Azmel Ma’amor and Abdul Aziz Mohamad.

The court also set aside injunctions obtained by Subashini against Saravanan on grounds of a technicality; Subashini’s attorneys had submitted her divorce petition short of the required three months from the date of her husband’s conversion to Islam. Subashini was told she could re-file her divorce petition and with it, custody claims for her children upon dissolution of her marriage.

Subashini was reportedly distraught over the judgment, concerned that she might lose her second son who resides with her. She has not seen her older son for nearly two years, since her husband converted him on May 18, 2006 – the day he himself converted to Islam.

“It is unfair to treat me like this,” she told The Sun. “I have a right to make a decision about my children, as a mother.”

Bar Council Chairperson Ambiga Sreenevasan reportedly said that the ruling was positive in that it did not allow a person to avoid his legal obligations under his non-Muslim marriage.

Nevertheless, she highlighted a point of concern when she told the Star newspaper, “It is worrying that only one parent could unilaterally determine the child’s religion.”

Subashini’s legal battle began when her husband tried to dissolve their marriage and seek custody of their children following his conversion to Islam. In September 2006, the High Court dismissed her application to restrain her husband from resolving their marital problems in the sharia court.

On March 13, 2007, in a 2-1 decision, the court of appeal directed Subashini to go to the sharia court to seek recourse for divorce and child custody.

(Jasmine Kay - Compass Direct News)

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