Segregating Malaysia

By admin-s On Nov 14, 2014

(MMO) – Imagine a Malaysia where not every citizen has the same set of rights in court. With the creation of a Shariah Federal Court in the works, we are firmly moving further in that direction.

That is one of the outcome of Putrajaya’s plan to upgrade the Shariah legal system from a three-tier judiciary system to a five-tier system. The Shariah Federal Court is intended to have the same legal powers as the civil Federal Court, Religious Affairs Minister Datuk Seri Jamil Khir Baharom said this week.

But will the proposal also address the conflicts between our two justice systems? Once we have a Shariah Federal Court, which Federal Court will take precedence over the other?

There had been examples aplenty of such conflict in recent years. In 2009 Indira Gandhi, a Hindu mother, lost her three children after their father, who had converted to Islam and subsequently converted the children too, gained custody in the Shariah court.

The Ipoh High Court ruled in Indira’s favour a year later, annulling the conversion of the children and ordering the father to return the children. But he refused to return the youngest child.

Another instance is the custody battle involving Deepa Subramaniam, who saw her two children being taken by their father, a Muslim convert, after the latter won custody in the Shariah court.

He had converted both without the mother’s knowledge or consent, as in the case of Indira, and despite a Seremban High Court ruling ordering him to return the children, the youngest is yet to be returned to Deepa.

It does not help that the police seem inclined to take the “middle ground” in the face of conflicting orders from both systems, as Inspector-General of Police Khalid Abu Bakar put it. What the police would do, said Khalid, is place the affected children in day care centres so that parents have an opportunity to visit.

But the police are supposed to be the arm of the law. Can they refuse to act on an explicit court order from either court system? Are they first instruments of the civil justice system or the Shariah justice system?

That brings us back to the ultimate question of which justice system, in conflicting rulings, would take precedence. And if one does eventually be placed above the other, we might still see some problems.

Should the civil justice system be placed above its Shariah counterpart, i.e. a civil High Court would always overrule a Shariah High Court, what might happen is that more and more Muslims facing Shariah rule of law would flee to the civil system.

We already had a taste of this with the transgender ruling by the Court of Appeal in Negeri Sembilan, which quashed a Shariah enactment in the state that banned Muslim men from cross-dressing. The enactment, said the court, infringes on fundamental liberty rights guaranteed by the Constitution.

In the end, what would be the point of having a Shariah Federal Court if Muslims can just run away to the other system to avoid its ruling?

Conversely, if the Shariah justice system takes precedence over the civil counterpart, the net effect is that our society would be divided into two sets of people with different rights according to the overall legal system.