By Justin Ong
The Malay Mail Online
April 13, 2014
KUALA LUMPUR, April 13 — On Wednesday, S. Deepa’s joy of winning custody of her two children from estranged husband Izwan Abdullah, a Muslim convert, just days earlier turned to terror when he abducted their son from her Seremban home.
But that terror must have been eclipsed by the shock of learning that the police cannot — or will not? — do anything as the man was granted custody of the children by a shariah court last year.
At first glance, the matter had appeared less tangled than the convoluted custody battles that usually accompany child conversion cases, but it soon transpired that such matters inexorably become complicated when religion is involved.
Here are the three things we have learned from the case so far.
1. Unilateral child conversions are still happening despite Cabinet ban.
In 2009, the Cabinet announced a prohibition against the unilateral conversion of children to Islam by either parent, to prevent further cases where custody battles are locked in a legal limbo that sits in the void between the civil and shariah court systems.
Then de facto law minister Datuk Seri Nazri Aziz said the Cabinet had decided that children must be raised according to a couple’s shared faith at the time of marriage, to prevent religion from being turned into a tool in later custody battles.
While the letter of the law in this case is clear, the application is anything but: Izwan converted both his son and daughter to Islam on his own in 2013, nearly four years after the Cabinet expressly forbade this.
Inspector-General of Police Tan Sri Khalid Abu Bakar’s pronouncement that authorities will not pursue Izwan for taking his son despite the High Court ruling granting custody to the mother is a troubling development in the already complicated subject.
This suggests the Muslim spouse has the ability to forcibly take custody of his children notwithstanding a civil court order, and to do so without repercussion.
With non-Muslims already having no standing before the shariah court that only recognises followers of Islam, to have an ostensibly non-religious enforcement agency yield so readily to the Islamic legal system despite what even Minister Nazri calls clear-cut kidnapping is a dangerous precedent for the entire country.
2. No resolution until the Federal Court fulfils its duty
Malaysia operates parallel legal systems with civil law that applies universally and shariah law that is restricted to Muslims.
In theory, the two systems are distinct and separate. In practice, however, the lines are often blurred, and more so in joint cases when some parties are Muslim and others are not.
Deepa’s case is a clear instance of where the overlap occurs, and with no proper resolution. Which is the superior and which is the subordinate legal system?
In 2010, Malaysia’s apex court was granted the opportunity to provide clarity on the issue.
Then, the Federal Court heard the inter-religious custody battle between Shamala Sathiyaseelan, a Hindu mother, and her Muslim ex-husband for the right to their two children.
Among others, it was asked to decide which — the civil court or the Shariah court — prevailed when conflicting orders were made with regards to the custody of children.
But rather than providing a much-needed answer, the country’s highest court chose the easy way out by not deciding at all. It abdicated its duty to rule on law and chose to entertain the triviality of Shamala’s self-enforced exile from the country.
Until the Federal Court one day gets another chance to revisit the issue, Deepa’s will unlikely be the last in the litany of such cases.
3. More worrying as hudud creeps nearer
Kelantan is again attempting to enforce the Kelantan Syariah Criminal Code Enactment II 1993 that would allow it to roll out hudud law in the state.
In attempts to assuage non-Muslim apprehension over the Islamic penal code that permits for punishments such as amputation, flogging and death by stoning, the system’s proponents insist that it will not extend beyond adherents of Islam.
Given the palpable extension of shariah law into the lives of non-Muslims, however, such assurances are empty platitudes at best and disingenuous consolation at worst.
It is unclear whether Kelantan’s endeavours will ever be successful, but it is unthinkable that the country could do with another intricate criminal system when the civil-shariah quagmire is as intractable as it is now.