Updated: September 08, 2016 06:31 AM GMT
A Malaysian religious student holds the Quran at school during the Muslim holy fasting month of Ramadan in Hulu Langat, near Kuala Lumpur. Malaysia's constitution allows Shariah law, which has created complications in what is a dual justice system. (Photo by AFP)
A few weeks from now, Hindu kindergarten teacher M. Indira Gandhi will get a final court hearing over the fate of her three children: will they be declared Muslims, or will they be allowed to choose their faith upon reaching adulthood.
Gandhi has been the victim of a tug-of-war between civil and Islamic jurisdictions that have had a hand in keeping religious relations in Malaysia simmering.
Seven years have passed since she separated from her Muslim husband. Two of her children are now in their late teens and the youngest is about 8-years old. It's hard not to think any outcome will be too, little too late.
Ever since her husband divorced her and converted to Islam in 2009, in the process gaining custody of their children by converting them to Islam as well, the case has wound its way through both the civil and Islamic courts in the predominantly Muslim country, seesawing between judgments based on Islamic law and civil rights.
The laws of Malaysia are mainly based on the British common law legal system. While the Federal Constitution is the supreme law of the land, the constitution also provides for Islamic justice for Muslims.
Sharia law only applies to Muslims and the Islamic court has jurisdiction in marriage, inheritance, and apostasy.
Complications have arisen with regard to the dual justice system. The constitution provides that "Every person has the right to profess and practice his religion."
However, in the case of Lina Joy — a Malay who converted to Christianity in 1998 — the Federal Court refused to allow her to change her religion indicated on her identity card. The judges held that it was a matter of the Shariah Court to decide. The publicity surrounding the case forced her into hiding.
The ruling created a legal loophole and allowed divorced parents to gain child custody easily and escape alimony payments by simply converting to the official religion.
It was also apparent that some people were converting to Islam not because of faith but for community or commercial needs.
The case has driven such a wedge between Malaysia's Muslim and non-Muslim communities that Prime Minister Najib Razak has been forced to act. He announced two weeks ago his government would amend the law to ensure interfaith disputes involving civil marriages be resolved in civil courts.
"One issue that is controversial and has courted all sorts of reaction from society is the problem of conversion, especially when a divorce takes place and one spouse has converted to Islam," said Najib at the National Women's Day celebration on Aug. 25.
"The conflict between the Civil and Sharia Court arises when one spouse converts to Islam. [This amendment] will resolve the lacuna which exists," he said.
Catholic lawyer Jeyan Marimuthu has applauded the decision. "It's the proper thing to do. If the marriage is under civil law then you should just go through the civil procedure, get the dissolution of the marriage, determine the custody and alimony and everything else and [after that] the Muslim spouse can be subject to Shariah law," said Marimuthu.
"Whether it's going to be a law remains to be seen. It could just be there, like a carrot dangling around until it is put through parliament and becomes a law. We are not there yet," said the member of the Sabah Catholic Lawyers Apostolate.
Like Marimuthu, many non-Muslims are skeptical that the government is listening to them.
A clergyman in Kuala Lumpur who requested anonymity said he was not convinced non-Muslims would get a fair deal in a mainly Muslim environment.
"The problem is there will be judges, who in adhering to their Islamic faith, will find it difficult to act in any other way other than what they understand to be a just solution, that is, the Islamic way. So is there any hope of a just judgment? I am not sure," he said.
Marimuthu agrees that there is concern that there will be religious bias in Malaysia's civil service.
He points to how the chief of police ignored a court order to arrest Indira Gandhi's former husband for refusing to come to court.
"This is a blatant disregard of a court order. They don't realize the seriousness of that. It's astounding," said Marimuthu.
"If today we can disregard a court order then what is there for anyone disregarding a court order in the future," he said. "In any other country the refusal to obey a court order could amount to a committal or committal proceedings."
In court, politics and religion are irrelevant, said Marimuthu. "You should not be able to distinguish the race or religion of a judge from their judgments but unfortunately it's something you can do in Malaysia."
Former Court of Appeal judge, Justice Mohd Hishamudin Mohd Yunus said in an interview last year before his retirement that he believed that the negative perception of the judiciary was self-inflicted through poor adjudication.
Malaysia's racial composition — Malay, Chinese, Indian and the indigenous people of Sabah and Sarawak — has also always been used by politicians for their own ends.
"Religion has been used as a tool for political power [in Malaysia and the] government is always out to please the majority who are Malay and Muslims," said lawyer Marimuthu.
Malaysia's top court, the Federal Court has fixed Nov. 14 and 15 to hear Indira Gandhi's appeal to challenge the unilateral conversion of her children to Islam by her former husband. Still, justice, if it comes, will be seven years too late.
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