The following are brief answers prepared by Hj. Abdul Rahim Sinwan, Deputy President, Muslim Lawyers Association of Malaysia, in response to questions posed by the British Broadcasting Corporation (BBC) recently on the issue of conflicts between Shariah and Civil Courts. The BBC piece which quoted him appeared here.
I have made minor editing to the original text.
Conflicts between Shariah and Civil Courts
With reference to your queries and short notice, in deriving any perception of law especially with regards to Islam and Muslim in Malaysia, one must appreciate aspects of Federalism and relations with Malay rulers and states and in seeking solution within the framework of the Federal constitution. Having such backdrop will reduce or perhaps eradicate misconception and having slanted or biased deduction of Muslims, Islam and Malays. All of this must point to the relevance of Malaysia law and the legal system.
Is the association concerned with the number of cases trying to challenge the conflicts between Shariah and civil courts?
The association advocates educating the public at large as one of the main thrust of our objectives. Currently the Legal position of Muslims and Islam under the Federal Constitution enjoys the limelight in present context in conflicts of Shariah and Civil courts.
In child custody battles the non-Muslim parent say they should not subject themselves to the Shariah courts because it has no jurisdiction over them. What do you make of this argument?
The issue of jurisdiction of courts is a dicey issue when one approaches it without appreciating the backdrop mentioned earlier. Please note that the Shariah never stop non- muslims from seeking justice in Shariah court, in fact Shariah Court open its doors to non-muslim witnesses and litigants, cases of Nonya Tahir in Negeri Sembilan and Fatimah Teh in Pulau Pinang.
Non Muslims can submit to Shariah court jurisdiction, it is a fallacy that Shariah court is religious, the court is another system which can be alternative or in fact complement to the present civil system, the jurisdictional demarcation of the dual system is found under 121 1(1A) of the Federal Constitution.
The Law Reform Act (LRA) is modeled on the common law which historically a Christian Marriage and divorce law. In fact in Malaysia it took not less than 6 years for the law to be effectively invoked as there were resentment to its acceptance by the diverse religious group namely Buddhist, Hindus, Sikh and others because by accepting marriage under LRA it ran against their religion and customs.
Muslims are not subject to this law! The Non Muslim especially the non Christian for now has another alternative if they submit to the jurisdiction of the Shariah Court. The Shariah Court is invoking a system it does not force religion, would it be fair that the common law in Malaysia legal system invoke Christian religion to litigants and witnesses in present context.
In conversion cases, why should the Muslim have to go to Shariah courts to seek permission as opposed to the civil courts? Is it realistic to say Shariah courts would grant this since the court is based on the Islamic faith?
Reference in respect of Conversion cases in Malaysia is a settled law as to which court the party must go as in the case ofLina Joy case. The apex court has decided, the very purpose that Lina Joy sought remedy at Civil court for an answer has been answered by the apex court, she chose certainty of forum to opt out of Islam has been clearly answered by the Apex court! Civil Court has no jurisdiction to define faith and decide Muslim faith of a person.
Whether one is a muslim or not is not within the jurisdiction of Civil court, the best forum is Shariah court because even Mufti, mullah, Imam or even Islamic institution namely JAKIM can do that!
Lina Joy has shied away the solution she initiated. Take note the Apex Court has decided.
So far the civil courts have shied away from making a decision in these constitutional challenges. Do you see a resolution to these cases?
The Civil courts make decision based on issues challenging the constitutionality of matters pertaining to Islam and Muslims. It would be unfair when the court judged otherwise it would be construed to be biased! Litigants were given every opportunity to advance their contention and argument. The adversarial system in Malaysia follows the “stare decisis” where the higher court binds the lower court and the higher court sets precedents to development of law in Malaysia. There would not be certainty to law if the “sour grape syndrome” is advocated.
There is a perception that Shariah courts will favour Muslims over non-muslims (in custody cases) and against Muslim converts. What do you think of this perception?
Such perception is a fallacy. It’s an old message forever new! Shariah Court welcome non muslim litigant in seek remedy in Shariah court, it would be an insult to muslims that Shariah Court does not know to dispense justice! Shariah court is as misunderstood as the religion Islam itself, a misnomer not to non- muslims but also to many muslims! Therefore one of the very purposes of our association is to educate the public at large.