AS a Muslim majority country, Malaysia has a dual-track legal system which comprises civil courts and Shariah courts. While Shariah courts govern and try Muslim Malays on religious and moral charges, civil courts on the other hand are applied on the non-Muslims, following secular laws which deal with every aspect of their lives. The jurisdiction of Shariah courts in Malaysia is however limited to matters mostly related to individual moral conduct and family affairs such as inheritance, marriage, divorce and children custody.
Shariah laws at the state level are administered by the authorities through the Shariah or Islamic courts which have jurisdiction over all Muslims in the country. Having said that, the degree of their implementation and enforcement would vary from one state to another. As highlighted before, while the Shariah laws deal with some cultural and social aspects of the Muslims, they do not generally try or interfere with the practices of the other communities. Although they are concerns among the non-Muslims about the possible incorporation of certain elements of Islamic Shariah laws into civil laws such as khalwat (seclusion / close proximity with the opposite sex), incidents related to such concerns have been mostly isolated.
Religious Coversion And Apostasy Legislation
The controversies surrounding the issue of religious conversion and apostasy ruling in Malaysia have also been really disquieting in recent years. As far as the issue is concerned, the laws in Malaysia are tilted in favor of the religion of the majority, Islam. While the government policy has not restricted changing one’s religious beliefs and affiliation for non-Muslims, changing or conversion to Islam indeed raises several issues. There are few examples explaining this.
For instance, if a non-Muslim wishes to marry a Muslim, he or she must convert to Islam before the marriage can take place. It is the only way to do it if the involved parties want their marriage to be legally recognized in the country. Another instance could best be presented by a conversion of a minor, being defined by the federal law as person under the age of 18. In Malaysia, a minor may not convert to another faith without prior consent and explicit permission of his or her guardian.
That being said, while the conversion of a non-Muslim person to Islam is massively and highly ‘encouraged’, the Muslims in Malaysia may not legally and socially convert from Islam to another religion as Shariah courts may not allow such conversion. Furthermore, the legal procedures relating to any application in that regard somehow seem quite vague despite the fact that the Shariah courts can still grant their permission for the conversion to happen. That being said, it is apt to say that conversion from Islam is practically and legally difficult in Malaysia.
One of the most famous yet controversial issue is represented by a case involving a Muslim-born woman by the name of Azlina Jailani or Lina Joy. In May 2007, Malaysian Federal Court rejected her appeal to be recognized as Christian, thus ending her six-year legal battle that later heightened concerns over the encroaching discriminations on the religious minorities in Malaysia. The panel of judges decided that they had no power to intervene as cases to apostasy would fall under the jurisdiction of Shariah courts.
Critics of the verdict said it was illogical to ask Lina to go to the Shariah court as she could face criminal prosecution for apostasy is punishable by a fine or a jail term. So in the eyes of Malaysian judicial system, Lina remained a Muslim woman despite her public renunciation of the faith. As Muslims at large celebrated and greeted the final verdict, it was no secret that many non-Muslims consequently expressed their dismay, saying the court had failed to uphold the legal right of Malaysians.
Apostasy and religious conversion in Malaysia have also been increasingly interlinked with the issue of child custody in the case of unilateral conversion of the parent. Over the years, Malaysians have witnessed cases where minors being converted to Islam without the consent of the non-Muslim parent. In most cases, Shariah courts usually upheld the conversion of minors despite the opposition of one parent and, in fact, stern objection from the affected religious community as a whole. The same issue has been lingering around the disputes between many parties over the status of Muslim converts upon their death.
Interfaith Custody Conflicts
The issue on unilateral conversion of minors has ignited and somehow brought a public discourse afresh. Emanating form M. Indira Gandhi’s case, there was a strong call for the government to review the 1976 Law Reform (Marriage and Divorce) or known as Act 164 which could provide a clearer answer to the status of legality vis-à-vis the unilateral conversion of minors. In addition, amendment to the act would also resolve the issue on the long-overlapping jurisdictions of civil and Shariah courts in Malaysia in matters pertaining to the dissolution of marriage between a Muslim convert and his or her non-Muslim spouse. However, despite passing the amendment in August 2017, the government excluded the crucial provision that would have resolved interfaith custody conflicts and established coherent standards for reconciling the best interests of the child.
What Is Next For Malaysia?
When discussing the conflicting jurisdictions of both civil and Shariah courts in Malaysia, it can be said that all cases in regards to those proceedings between Muslims and non-Muslims have been closely watched by Malaysians as a whole as it could set a precedent for inter-religious disputes. Minority groups such as the Buddhists, Christians and Hindus have expressed fears that courts, be it civil or Shariah, are fairly asserting the supremacy of Islam. As what has been presented in relation to the given instances, one can fairly note that laws in Malaysia are quite vague on which court has the authority to deal with disputes between Muslims and non-Muslims, especially when it comes to family disputes and marital feuds. Past cases of overlapping jurisdictions between civil and Shariah courts are also apparent in the burial rights of non-Muslims, indicating the still unclear separation of the courts.
Various examples are there to show that civil courts have usually been reluctant to issue verdict or position on such cases, citing the power to do so rests with Shariah courts. As a result, this has not only raised questions and doubts on the freedom of religion as guaranteed by the Constitution, but it has also made the racial relations to become even more strained in this multiethnic country, which in the past has come to enjoy largely peaceful and harmonious race relations for decades. As the government has recently passed amendment to the 164 Act and that the Federal Court has set a judicial precedent vis-à-vis Indira’s case, many would now hope to see a real change taking place although there are still many related issues to be addressed. That change, of course, will help to determine whether separation between civil and Shariah courts will now be clearly defined and that whether people will finally appreciate the interrelationship between the two legal systems in the country. Sitting idle and doing nothing in regards to all these issues will only give a wrong message to the religious minorities that the government is not ready for such a change just yet. As a result, this could turn political and costly for the incumbent government come the 14th General Elections (GE14) as the minorities seek a real reform in our legislative arm.