Can non-Muslims get justice from a Muslim court?
By Mohamed Hanipa Maidin
December 31, 2015
The issue of the unilateral conversion of children without the consent of both parents comes to haunt us again in the case of M Indira Gandhi and Ridzuan Abdullah.
The conundrum of their legal fight should act as a wake-up call for the government to take immediate action in providing workable solutions to the issue of conversion of children without parental consent.
The majority opinion of the Court of Appeal held that only the Syariah Court has exclusive jurisdiction to determine the validity of conversions of children to Islam. Hence it overturned the High Court’s decision which decided in favour of Indira Gandhi, the mother of the children. The High Court held that the conversion was null and void due to non-compliance of the relevant law.
To her partial relief, the mother’s grievances seemed to be duly appreciated by the dissenting judge at the Court of Appeal, who affirmed the decision of the High Court.
Justice Hamid Sultan Abu Backer held that the conversion was a nullity from the beginning as the application for conversion was not made by the children as required under the law. The evidence showed the application was made by the father of the children and against the law.
Be that as it may, the dissenting judge treated the issue as purely an administrative one and thus the jurisdiction of the civil court was not ousted.
Many Muslims, I feel, are likely to celebrate the decision of the Court of Appeal as if it was a religious victory in a holy war between good and evil. I really hope that I am wrong to hold such an assumption.
My immediate reaction was that the court took the safest route by not taking the bull by the horns in addressing the lingering issue of conversion of children without parental consent. Instead, the court simply held that the proper forum to hear the case ought to be the Syariah Court, period.
That judgment aside, what I seek to share here is what should be the right Islamic perspective of Muslims facing this delicate issue. In other words, how are we, as Muslims, supposed to address the issue of conversion without jettisoning the principle of justice which is the bedrock of Islam.
The jurisdictional clash between civil and syariah courts is not a new phenomenon. There have been many legal battles arising from the issue of unilateral conversion which unfortunately have failed to find a workable solution.
On the contrary, every time the issue of conversion erupts in court, it creates profound distrust among people of other religions.
Muslims have to ask themselves what the right attitude should be in this issue. To me, it depends on how Muslims define the doctrine of justice in facing non-Muslims who are genuinely denied their basic rights in any legal battle with Muslims.
It is unfortunate that some Muslims view the delicate issue of conversion only from the theological angle. This attitude takes a simple view that the Muslim father or mother must save his or her children’s faith at all costs thus justifying denial for the non-Muslim parent to have any say on the custody or conversion of the children.
That is how they define justice. Simply put, justice equates to victory in getting custody and conversion of the children at all costs.
Any Muslim who holds this view simply endorses the unilateral action of any Muslim parent to convert their children to Islam thus ignoring the audi alteram partem (right to be heard) of the non-Muslim parent. The subscribers to this view also believe that the only forum qualified to hear the conversion case is the Syariah court. Period.
To be honest, I too hope we could reduce this nightmarish issue simplistically. But the problem with this view is that it is based on certain false assumptions.
First, it is assumed that Malaysia is governed by a single legal system administering all Malaysians regardless of their religious beliefs.
It also puts non-Muslims and Muslims on the same platform thus they must be subject to the same court namely the Syariah court.
It also assumes that before the divorce, both spouses contracted the marriage under Islamic law and not under the law reform (marriage and divorce) Act and hence there is nothing wrong if the Syariah court deals with their marital problems.
The fact that the Court of Appeal decided that only the Syariah court should have sole jurisdiction to hear and determine the validity of the conversion seems to suggest that the civil court also subscribes to the same view. The civil court apparently does not care that the effect of the judgment is as good as closing the door of justice on the non-Muslim litigant. In other words, the court seems to play down the principles of natural justice.
That is why Muslims, particularly religious scholars, should not view this issue within the narrow compass of the theological perspective alone. On the contrary, justice for all which stands as a cardinal principle of Islam must be duly taken into account.
The Quran categorically reminds Muslims; “Let not hatred and enmity forbid you from dispensing justice. Do justice as it is closer to piety” (Al-Maidah: 8). This verse not only promotes justice for all but also enjoins Muslims to establish the most difficult part of justice, that is justice for your enemy.
That justice is the hallmark of Islam has been the view of great Muslim scholars such as Ibnu Al Qayyim Al-Jauziyyah who had aptly said; “The entire system of syariah is founded on the principles of justice, mercy and wisdom. Be that as it may, anything which is against those three principles are not syariah in spite of its labels.
Translating such principles into the case at hand, do Muslims really see any justice, mercy or wisdom in this legal battle when one litigant is forced to seek justice in the court that she is not allowed to go to, in the first place?
Mohamed Hanipa Maidin is MP for Sepang and chairman of Kanun.