©The
Star (Used by permission)
by Dr Shad Faruqi
The Federal Executive is enlightened, tolerant and accommodative on
inter–religious relationships. It is some judges who are disregarding the
Constitution’s gilt–edged provisions on moderation, tolerance and accommodation.
THE overall situation of inter–religious relations in Malaysia was exemplary
till the early 90s. Since then the calm has been broken by a number of legal,
political and moral dilemmas that defy easy solution.
The last 15 years have witnessed many cases on apostasy, conversion of infants
and jurisdictional conflicts between the syariah and civil courts. These
disputes pit constitutional values against religious and racial considerations.
The response of the judiciary has been mixed. Some judges hear the call of
justice and give decisions that transcend narrow considerations.
There are heartening rulings in Jamaluddin Othman (1989), Teoh Eng Huat (1990),
Shaikh Zolkaply (1990), Ng Wan Chan (1991), Tan Sung Mooi (1994), Lim Chan Seng
(1996), Nyonya Tahir (2007) and the minority opinions in Lina Joy and Subashini
(2007).
In other cases, however, judges have deserted constitutional values for higher
considerations. Foremost among these one–sided decisions are Dalip Kaur (1992),
Hakim Lee (1998), Soon Singh (1999), Daud Mamat (2000), Kamariah bte Ali (2002),
Priyathaseny (2003), Tongiah Jumali (2004), Shamala (2004), Nadunchelian v
Norshafiqah (2005), Kaliammal (2006), Lina Joy (2007) and the majority view on
conversion of infants in Subashini (2007).
We have a High Court decision telling an aggrieved non–Muslim spouse that though
she has rights, she has no remedy in the High Court.
This is despite her plaintive cry that being a non–Muslim, she has no recourse
to the Syariah courts.
We have a superior court judge advising an aggrieved non–Muslim spouse that
because civil courts have no jurisdiction, she must be open about going to the
Syariah Court.
This judicial advice is irreconcilable with the Constitution’s clear provision
in Schedule 9, List II, Paragraph 1 that Syariah courts “shall have jurisdiction
only over persons professing the religion of Islam.”
We have heart–wrenching stories of infants separated from pining parents,
converts sent to rehabilitation centres, disputes between wailing relatives and
religious authorities over dead bodies.
There is a case of a lawyer charged with the criminal offence of abetment
because he refused to divulge the whereabouts of a convert out of Islam who had
retained him as her counsel.
The irony of the situation is that on inter–religious relationships the federal
executive is enlightened, tolerant and accommodative.
It is some judges who are disregarding the Constitution’s gilt–edged provisions
on moderation, tolerance and accommodation.
One cannot, therefore, sit idly by as the ideologues tear the Constitution apart
and unravel the beautiful and unique mosaic that took five decades to build.
It is submitted that if the exercise of a human right, no matter how sacrosanct,
hurts other people or affects society adversely, then some substantive and
procedural limits on the exercise of this right are not unreasonable. The right
to convert out of one’s faith is one such right that needs re–examination.
In the special circumstances of Malaysia, all conversions from any faith should
be subject to an impartial, quasi–judicial scrutiny to ensure that there is no
improper motive e.g. trying to evade the obligations of a civil law marriage. We
need to guard against cheque book conversions and conversions under undue
influence or improper inducement.
In the case of a Muslim leaving his religion, the legal and social implications
for his family, marriage, children and property are immensely disruptive.
The marriage will be dissolved. Painful questions of custody, guardianship and
religion of the children will crop up. Posers over already acquired Malay
privileges, Malay reserve land and amanah saham shares will stare us in the
face.
An impartial scrutinising mechanism is, therefore, reasonable for all cases of
conversion. The convert–to–be should be enlightened on the full legal, social
and economic implications of his/her adoption of a new faith. This “judicial
filter” approach is justifiable because status is generally other–determined,
not self–determined.
All proselytising activities, whether covert or overt, among minors should be
subject to the prior approval of parents and with full regard for Article 11(4)
which permits the regulation of religious propagation among Muslims.
Conversions of minors should not be allowed without the consent of both parents.
In the Constitution in Article 12(4) it is stated that “the religion of a person
under the age of eighteen years shall be decided by his parent or guardian”.
This provision has been abused by some parents who, in the midst of divorce
proceedings, pre–empt the judicial verdict by converting their infant children
without the consent of the other spouse.
The majority decision in Subashini notwithstanding, the word “parent” in the
singular should be interpreted as a plural. Authority for this is found in the
Eleventh Schedule of the Constitution, paragraph 2(95), that “words in the
singular include the plural?”
Before any conversion application is approved all affected parties must be
notified and must have a legal right to be heard.
To implement this proposal, some hurdles will have to be overcome about the
appropriate judicial forum because Syariah courts have no jurisdiction over
non–Muslims.
Before any conversion is allowed to be registered, there should be a prior
judicially sanctioned resolution of the status of the marriage, the division of
property and the custody and guardianship of children.
The law applicable to all such matters should be the pre–conversion law i.e. the
law under which the relationship was subsisting before the unilateral decision
to convert disturbed the status quo.
Authority for this can be found in the recent decision in Subashini where the
majority gave an admirable ruling that a marriage contracted under civil law
must be dissolved under civil law.
It does not arouse non–Muslim confidence in our courts if civil judges close
their hearts and minds to the personal tragedies that underlined the cases of
Priyathaseny, Kaliammal, Subashini, Shamala, Hakim Lee, Dalip Kaur and Soon
Singh.
It is an incredible act of unconstitutionality as well as insensitivity to ask
people to seek recourse in the ecclesiastical courts of a faith to which they
(or their families) claim they do not belong.
An adjudicatory machinery that is not only impartial but is seen to be so should
be employed. For example in Ng Wan Chan v Majlis Ugama Islam (1991) where there
was a dispute about whether a Buddhist man who had converted to Islam, had
renounced it later on, the High Court accepted jurisdiction and made an
objective decision.
In cases in which one of the parties to a family law dispute is a Muslim and the
other a non–Muslim, the matter should be committed either to the civil courts or
to a newly created Special Court or a Judicial Committee of the Conference of
Rulers.
In a multi–racial, multi–religious society conflicting interests cannot be
avoided.
The political executive knows this and has done a good job reconciling the
irreconcilable. It is some judges who have let us down.
On inter–religious issues the social fabric is clearly under stress. Looking the
other way will not make the problems disappear.
On these issues, either we climb up the slippery slopes or we fall. The ground
is slipping beneath us.
It is time for the executive, the Attorney–General and Parliament to seize the
initiative, and to chisel out workable compromises that preserve the social
fabric and restore the balance of the Constitution.
* Dr Shad Saleem Faruqi is Professor of Law at UiTM.