Converting to Islam and Back

Today, the papers carried reports of the latest scandal about converting to Islam in Malaysia. This time, it turns out that a father estranged from his wife converted both his sons to Islam. The mother attempted to get an injunction from the civil courts to prevent the conversions, but the Court of Appeal dismissed her suit.

This is a case which is obviously fraught with tension. As noted in other articles before, Islam and religion are two of the most controversial issues in the country and its politics. Anyone touching on religious issues, especially where Islam is involved, can expect hellfire and brimstone to rain down on him from those who take offense at his views (and their numbers will always be many, no matter which side of the secular-fundamentalist dichotomy he is on).

The main problems in this case, I think, are two. The first is separation of mosque and state — why should the government be so involved in the private lives of its citizens? The second is the jurisdiction of the courts — should the civil and Syariah courts be equal in authority, or should one be subordinate to the other?

In the first place, ideally, it should not matter what religion you are. All Malaysians are supposed to be equal under the law, and this case should be treated the same way as it would be if one spouse was Buddhist and the other was Christian.

Unfortunately, this is not so because Islam has slowly been encroaching on the halls of government. This was confirmed in 1988, when a series of constitutional amendments to limit the powers of the judiciary had the effect of placing the civil courts on the same standing as the Syariah courts.

As a result, the two Malay/Muslim judges who heard the case held that if they were to rule in favour of the mother, they would be effectively overruling the decree of the Syariah courts, and therefore be acting ultra vires (beyond the powers granted by) the Constitution.

The dissenting judge, Gopal Sri Ram, argued that they were instead permitting the Syariah courts to act ultra vires the Constitution, since under the Constitution, Syariah courts can only have jurisdiction over Muslims. As one of the parties in this case is a non-Muslim, he argued, the case rightfully belongs to the civil courts, and therefore the plaintiff could seek a remedy in the civil courts.

I am naturally inclined to agree with Gopal Sri Ram, being a non-Muslim and thus sympathetic to the plight of the mother. But even putting emotions aside, it seems to me that all three judges have made very rational and reasoned arguments for their judgments. This illustrates very well how complex the law can get — as I noted before, the law is more often about shades of grey than about black and white.

Nevertheless, it seems to me that the decision against the mother is wrong. By framing the question in terms of whether they are infringing the Syariah courts' authority, the learned judges have implicitly biased themselves against the civil courts. They could easily have gone the other way and asked whether by allowing the judgment of the Syariah courts to stand, they would be infringing on the civil courts' authority — and in such a case, it would be clear that their judgment in effect allows the Syariah courts to overrule the civil courts on almost any matter.

The real problem here is not that any of the judges are wrong per se, though. Obviously someone has to be wrong, but it seems to me that because both the Syariah courts and civil courts are placed on an equal footing, we are in a position where neither court can decide on something that the other can also decide, creating a catch-22 (the phrase one judge aptly used to describe the mother's position).

The problems arising from two parallel systems of law were already well-known to lawyers in 1988. These problems were noted in England from the Middle Ages, where there were two systems — common law and equity — in operation and having equal authority. Where jurisdictions appeared to overlap, decisions tended to be arbitrary and unjust.

The solution then was to merge the court systems, as indeed occured in the mid-19th century. Obviously, though, this would not be very feasible in Malaysia. Thus, the next best thing is to make it clear which system should prevail over the other in event of a conflict.

As our country is still a secular state, not a theocracy, it is thus clear to me which system should prevail. The civil courts must be superior to the Syariah courts.

The trouble is, we can't rely on the courts to decide this, as this is written into the Constitution. The ball is now in Parliament's court. All three judges in the case concerned actually penned judgments in support of the mother, but the two judges who decided in favour of the father held that as the law was worded the way it is presently, there was no way they could rule in the mother's favour.

As one of the learned judges noted, it is Parliament's job to address this problem. We must resolve these disputes before they further sully the image and reputation of Islam, and cause greater fissures in our country and society.