The New York Times on 12 March 2010 featured the article above in reaction to the M. Indira Gandhi conversion/custody case where the Ipoh High Court overruled a Syariah court decision. LoyarBurokkers K. Shanmuga, who acted for Ms. Gandhi and Edmund Bon, Chairman of the Malaysian Bar Council Constitutional Law Committee are quoted in the article; reproduced below.

Clearer Limits Sought in Malaysia for Shariah Courts’ Role

By Liz Gooch

March 12, 2010

KUALA LUMPUR – Lawyers and religious minorities in Malaysia, encouraged by a civil court’s overruling a Shariah court’s decision in a child custody case, have called for a clearer divide between Malaysian secular and religious courts.

In what lawyers described as a significant decision that could help define the legal rights of religious minorities in this predominantly Muslim country, a Hindu woman was awarded custody of her three children Thursday after a Shariah court had granted custody to her husband, a Muslim convert who had also converted the children to Islam without her knowledge last year.

Under the two-tier court system in Malaysia, Shariah courts hear family law cases involving Muslims whereas secular courts handle those involving non-Muslims. But concerns have grown in recent years about the rights of non-Muslims when a dispute between a Muslim and a non-Muslim is heard in a Shariah court.

Several legal experts welcomed the decision by the Ipoh High Court in Perak State, which awarded custody to the mother after deciding that she did not fall under the Shariah court’s jurisdiction.

“What the judge said is that the Shariah court decision has no legal effect in the High Court and has no effect on the mother because the mother is non-Muslim,” said K. Shanmuga, a lawyer for the woman, M. Indira Gandhi.

The high court ordered the father to hand over the couple’s 2-year-old daughter to Ms. Gandhi. Two older children were already living with Ms. Gandhi, but the father had declined to hand over the youngest child, Mr. Shanmuga said. Ms. Gandhi plans to contest the children’s conversion to Islam next month.

The court’s decision was significant, Mr. Shanmuga said, because in recent years there had been a push by Islamic organizations and lawyers representing Muslim converts to have family law disputes involving Muslims and non-Muslims handled in Shariah court.

He said non-Muslims were barred from appearing in a Shariah court, but that had not stopped the courts from ruling on divorce and custody without hearing from the non-Muslim spouse.

Mr. Shanmuga said there would still be some uncertainty after the decision Thursday. “At the moment, we have this position where there’s a Shariah court order saying one thing and a High Court order saying another thing,” he said. “But the High Court one should be the one that binds everyone. The Shariah court only has jurisdiction over Muslims.”

Edmund Bon, chairman of the Malaysian Bar Council’s constitutional law committee, said that the decision was a positive development but that the law needed to be further clarified to ensure a clear demarcation between civil and Shariah jurisdictions.

Mr. Bon said there had been a series of court decisions in recent years that had raised concerns about the rights of a non-Muslim spouse if a case was heard in the Shariah court.

“Because the non-Muslim is not able to appear in the Shariah court, the chances are higher for a Muslim to be able to get what the Muslim wants,” he said.

The president of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, the Rev. Thomas Philips, said there was growing concern among non-Muslims over the “penetration of Islamic law” in Malaysia. In 2007, a civil court refused to grant a Hindu mother leave to stop her husband from converting their son to Islam.

“We are stating very boldly that we do not want to be subject to Shariah law, we only want to be subject to civil court,” he said.

Religious tensions have risen recently in Malaysia, and churches and mosques have been vandalized, after a court’s ruling that non-Muslims could use the word “Allah” to refer to God.

Editorial Note: This article in The New York Times can be read here.

Related internet links:

“Indira gets custody of daughter from Muslim husband”

“No end yet to Indira custody fight”

7 replies on “The New York Times: Clearer Limits Sought in Malaysia for Shariah Courts’ Role”

  1. what is there to clarify? Marriages contracted under the civil laws must be dissolved under civil laws.

  2. Edmund Bon & Shanmuga,

    Congratulations on your achievement to uphold the Rule of Law & the Constitution (the unpoliticised version!)which The New York Times on 12 March 2010 featured – Clearer Limits Sought in Malaysia for Shariah Courts’ Role – By Liz Gooch.

    Former Lord President Tun Mohamed Suffian Hashim repeatedly insisted in his foundational written texts that in Malaysia,

    the constitution and nothing but the constitution is "the supreme law of the land".

    Malaysia cannot afford to see constitutional principles imperilled, and constitutional processes jeopardised —

    not even out of an understandable impatience, or a conscientious determination, to see the urgent political and practical problems of the day speedily resolved.

    (Clive S Kessler is Emeritus Professor of Sociology and Anthropology at the School of Social Science and International Studies at the University of New South Wales in Australia.)

    Keep up the great effort & "We shall overcome".

    Btw Shanmuga, your great Blog & your legal prowess in your cases would make your dad & mum proud.

    Cheers & take care.

  3. When I was in school, I was taught by my History/ Civics teachers that Malaysia IS a secular state with guarantee no less by the previous PMs and that the civil court IS supreme. Later when I was teaching in schools, I still said the same thing to my students as there was nothing contrary to this. But now nothing seems to be so clear-cut anymore. It is so obvious that the higher courts are NOT upholding our rights that are enshrined in our Constitution. If comments by our former CA judge Mr NH Chan is anything to go by, out judiciary has really failed us. I'll be least surprise if the ruling is overturned upon appeal. Then again are we that naive to think that Muslim Judges will rule based on laws and pass rulings against their own religion? I'd think ruling by HC Justice Wan Afrah is an exception rather than a rule.I still remember Lina Joy's case and the demonstration on the day prior to the ruling was handed down. As a non-muslim I felt not only intimidated but threatened, it must be much worse for a Muslim Judge then. Sigh!

  4. Malaysia is multicultural and the CIVIL court is the only court to rule supreme. Let the muslims have the shariah court but leave the non-muslim. If ISLAM is a fair religion, as claimed by the muslims, I do not see any problem in this. However, the UMNO Muslims are socalled faked malaymuslims and only abised it for thei own benefit.

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