Can we celebrate Malaysia Day when Islam overrides non-Muslims' right?!

5 September 2011 Last updated at 15:23 GMT

Malaysia's parallel judicial systems come up against legal challenges

By Jennifer Pak Kuala Lumpur

 
Tan Cheow Hong: 'If I had tried to stop them they would have arrested me'
 

As a Buddhist, Tan Cheow Hong didn't expect to run up against Malaysia's Islamic laws.

Then last November, his estranged wife showed up at their child's school with a court order from a Sharia judge, who had granted her temporary custody of their 7-year-old.

The wife took their daughter away with the help of Islamic officials and police.

"If I had tried to stop them they would have arrested me," says Mr Tan.

He says he had no idea his wife had become a Muslim. The next day his wife converted their daughter to Islam without Mr Tan's consent. That means both mother and child are now subject to Islamic law, which does not apply to non-Muslims like Mr Tan.

He is now filing for child custody through the civil court while his wife is fighting for the case to be heard in the country's Sharia court.

Blurred lines

The case highlights a growing problem with Malaysia's separate judicial systems and those caught in between. Muslims are bound by Sharia law on personal matters like marriage and custody rights, while members of other faiths follow civil law.

Yet the lines become blurred when cases involve both Muslims and non-Muslims. Analysts say some disgruntled spouses are exploiting the parallel judicial system.

The most high profile case involved an ethnic Indian couple who were married in a Hindu ceremony. The couple separated and the father became a Muslim. Then he secretly converted his two children to Islam and obtained custody through the Sharia court.

The Hindu mother was also granted guardianship, but through the civil courts. After several years the case is still in the courts to determine which court has jurisdiction to hear the matter.

In a desperate bid to escape the Sharia court order, the mother took the two children and fled the country.

Cases such as these have sowed a feeling of distrust among some non-Muslims who feel that the 'quick conversions' of children with the consent of only one parent are being allowed by religious authorities because of a rising tide of Islamisation in the country.

Courts defended

Mr Tan's estranged wife, Fatimah Fong Abdullah, refused to comment on her case to the BBC, but her lawyers confirmed that the child was converted after she returned to her mother. They are fighting to have the case heard in Sharia court.

The Muslim Lawyers Association argues that non-Muslims can submit themselves to the Sharia court jurisdiction.

"It is a fallacy that the Sharia court is religious," vice president Abdul Rahim Sinwan said in a statement to the BBC.

"The court is another system which can be alternative or in fact complement the present civil system."

There is a misguided perception that non-Muslims cannot get justice in the Sharia court but there are plenty of Sharia lawyers willing to give them fair representation, said Mr Rahim.

Law experts say the issue stems back to 1988, when the Constitution was amended to state that civil courts cannot hear matters that fall within the jurisdiction of Sharia courts.

This was meant to prevent Muslims unhappy with a Sharia judge's order from running to civil courts to challenge it, but in practice many claim it has also allowed Sharia courts to expand their remit.

Although government officials have said they will address the problems between Sharia and civil courts, nothing has been translated into law yet.

Alternative representation

In the absence of a remedy, a Christian lawyer is now fighting to practice in Sharia courts to give non-Muslims fairer representation.

 

Victoria Jayaseele Martin has been banned from practicing in Sharia courts in Kuala Lumpur because she is not Muslim

 

Victoria Jayaseele Martin says she is qualified because she holds a diploma in Sharia law from the prestigious International Islamic University Malaysia.

But the religious council in charge of Kuala Lumpur says she cannot practice in Sharia court because she is not a Muslim. Ms Martin is currently appealing against the decision.

Since non-Muslims are being asked to take cases involving Islam to the Sharia court, Ms Martin says they need effective counsel, especially in conversion cases. 

Legal limbo

But even with effective counsel in the Sharia court, non-Muslim Mr Tan says he will not subject himself to Islamic law.

Mr Tan is asking the civil court to decide whether one parent can convert the religion of a child without the consent of the other. He also wants the judge to declare that the Sharia court had overstepped its boundary when it granted his wife custody of the child, who was a non-Muslim when the order was issued.

The case is still stuck in the court process. For now he lives in limbo. Every two weeks he takes a five hour bus journey to Kuala Lumpur to see his daughter. It is part of the temporary custody settlement by the civil court.

"If my wife is in a good mood, then she'll allow me to see our daughter. If not, then she won't," he says.

Mr Tan is prepared to push his case up to the country's highest court.

But he feels the law is helpless.

"This type of case is very difficult to resolve in Malaysia because Islam is supreme."