A disturbing dichotomy

We need to cool things down a bit to resolve the sad saga of legal conflict due to religious issues.

Shad Saleem Faruqi, The Star 

THE domestic discord between a fractious couple (which between it made 35 police reports against each other during the last two years) has metamorphosed into a national, religious and racial controversy that has besmirched the name of many public institutions including the courts and the police.

We need to cool things down a little bit, see issues with some detachment and accept that in every country where legal pluralism is allowed, some painful conflicts of jurisdiction are unavoidable. The law in every land is a maze, not a motorway. Its multiplicity, diversity and conflicting hierarchies create a thicket that is never easy to traverse.

In our federal system, federal laws clash with state laws and the legal scene is quite turbid.

At the state level, syariah enactments of one state conflict with enactments of another state and reciprocal enforcement of each others’ judgment is an unfulfilled dream. Within the boundaries of a state, especially in Negeri Sembilan, Sabah and Sarawak, competition exists between custom and religion.

In Sabah and Sarawak, the rivalry between Native courts and Syariah courts is intense but is kept diplomatically discrete.

The most painful, unedifying and politically charged disputes are between civil and Syariah courts. They jar our landscape now and then and disturb our national harmony. What is not well known is that the clashes are not always between Muslims and non-Muslims.

Sometimes it is Muslims challenging the jurisdiction of the Syariah courts. For example in Latifah Mat Zin v Rosmawati Sharibun (2007) there was a dispute between the daughters of the deceased and his widow over the joint account of the husband and the wife. At contention was whether the civil High Court or the Syariah court has jurisdiction?

Occasionally there are objections to Syariah courts assuming jurisdiction on marriages contracted abroad between Muslims under foreign law.

Relating to non-Muslims, the most heart-wrenching dispute is about the religion of a deceased when there is information that prior to his death he had secretly converted to Islam.

Another tragic and intractable issue is the custody of children when one party to a non-Muslim marriage converts to Islam and opens the door to a jurisdictional clash.

This is what happened in the Deepa-Izwan case. The root cause of the jurisdictional conflict is Article 121(1A) of the Federal Constitution which states that the civil High Courts and inferior courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

Another problem is sections 3 and 51(1) of the Law Reform (Marriage and Divorce) Act (LRA) 1976. Section 3 states that the Act shall not apply to a Muslim. Section 51(1) states that if one party to a civil marriage has converted to Islam, the other party may petition the civil court for divorce.

Shockingly, this means that the converting party has no right to apply for dissolution of his marriage that was contracted under civil law.

As Izwan was not subject to the LRA, he rightly went to the Syariah court for dissolution and ancilliary relief – much to the detriment of Deepa whose hard-won civil court order for custody of her two children was short-lived when the ex-spouse in defiance of the High Court order forcibly removed one child from her custody.

This was not the first case of its sort but it has left a deep impact on our conscience. We need urgently to repair our frayed social fabric damaged by such disputes. My suggestions are tentative, subjective and open to revision.

First, the constitutional scheme of things in 1957, that the Syariah courts shall have jurisdiction only over persons professing the religion of Islam, should be reiterated.

Second, the Muslim volksgeist that their religious law should apply to them should, however, be respected. The radical solution that legal dualism should be abolished and there should be one uniform family law for all citizens is untenable. People have a right to live by their personal laws.

Even countries like the UK allow the Jews to apply their personal laws in defined fields.

Third, the federal government should engage with moderates of all communities and resist the cynical (and hitherto successful) effort to close down all discussion on “sensitive issues”.

Fourth, the country as well as our official religion suffer disrepute when Islam is instrumentalised by some converts to gain quickie divorces and obtain easy custody and guardianship over their children to the detriment of the non-converting spouse.

Conversion is their right but they must respect the Federal Court ruling in Subashini a/p Rajasingam v Saravanana (2008) that a non-Muslim marriage does not dissolve automatically upon one party’s conversion to Islam. The civil courts continue to have jurisdiction.

Fifth, the government had a few years ago taken initiative to draft new legislation to resolve inter-religious family disputes. The Bill met stern opposition from some Muftis and some members of the Conference of Rulers and was shelved.

It is time to revive the Bill after adequate consultation. Sweeping problems under the carpet is not doing our nation any good.

Sixth, the government should rely on Article 130 to refer to the Federal Court for the court’s opinion all questions that have arisen about the working of Article 121(1A).

This article was inserted to resolve disputes between Syariah and civil courts but has brought in its wake new dilemmas. That’s life and the law. Good laws often lead to undesired and undesirable consequences. We need to go back to the drawing board and begin anew.

> Shad Faruqi is Emeritus Professor of Law at UiTM.