Recent news cases about people who have converted to Islam highlight the complexities of living with two sets of laws, overseen by two different courts: one Syariah, one Civil. So which one takes precedence when religious conversion is involved?
Since 1988, the Syariah Courts have been given exclusive jurisdiction over Islamic matters through a constitutional amendment. Over the years, the Civil Courts have generally interpreted it as to mean that the personal laws of Muslims should fall to the Syariah Courts, even for those recently converted to Islam. As the interpretation goes, the Civil Courts are not above Syariah Courts, at least, with regard to Islamic Family Laws.
This means that Syariah Courts have largely expanded their enforcement. However, the Syariah Courts have, in some instances, acknowledged that non-Muslims may both be a witness and even make a claim through the court.
At the age of 36, M. Moorthy, a former soldier who was a member of the first Malaysian team to scale Mount Everest, died on December 20, 2005. After his death the Syariah Court decided that M Moorthy was a Muslim based on a military record, despite not having heard the testimony from his wife, Kaliammal. At this juncture, the Syariah Court of the Federal Territories refused to hear her testimony, claiming that she had no standing in the court. She, however, claimed that her deceased husband continued to live as a Hindu, as he celebrated Deepavali, consumed pork and alcohol.
Later, upon an application by Kaliammal, the Court of Appeal decided that the Civil Court had no jurisdiction on the matter because Art 121 (1A) of the Federal Constitution specifically bars Federal Court from adjudicating on Islamic matters.
On 28 December 2005, M. Moorthy was buried as Mohammad Abdullah in Taman Ibu Kota Muslim Cemetery in Gombak, Selangor
Nyonya Tahir @ Wong Ah Kiu
In a landmark case in 2006, the Syariah High Court of Seremban allowed a Buddhist burial for Nyonya Tahir. Throughout her 88 years of life, Nyonya Tahir had lived as a Chinese Buddhist despite being born as ethnic Malay.
Upon her death, the Syariah Court heard her children’s testimony and ruled that she is a Buddhist and should be buried according to Buddhist rituals.
On 18 May 2006, Subashini received a notice from Registrar of Syariah Court that her husband, Saravanan, had commenced proceedings to convert himself and their son to Islam. This promptly led Subashini to a series of long court battles for the custody of the child.
It ended in May 2007 with the Federal Court dismissing her application to stop the proceeding, citing that since Saravanan had converted to Islam, it was his right to seek remedy through Syariah Court. Civil courts have been consistent in maintaining that Islamic laws can only be adjudicated by Syariah courts.
Lina Joy’s conversion to Christianity from Islam was highly publicised in the media. Born and raised as a Malay Muslim, she decided to get married to her partner, who is a Christian, before being prevented from registering their marriage due to the difference in religion.
This came about even though she had legally changed her name (from Azlina) and had been baptised. No longer recognising herself as a Muslim, she decided to make the application to change her religion before the civil court.
Her effort culminated in the decision of the Federal Court in May 2007, which rejected her appeal because the application for a Muslim to leave the religion of Islam must be made before the Syariah court.
Siti Fatimah Tan Abdullah
In 2008, the Syariah Court of Penang allowed Siti Fatimah Tan Abdullah or Tan Eee Huang, to revert to Buddhism after divorcing her Muslim husband. Similar to the case of Nyonya Tahir @ Wong Ah Kiu, the Syariah Court took notice of her non-Islamic upbringing and lifestyle and decided to accept that she is no longer a Muslim.
The custody battle between Indira Gandhi and Mohd Ridzuan over their daughter, Prasana Diksa, is yet another notable case in the drawn-out judicial conflict between Syariah and Civil Courts.
Back in 2009, upon his conversion to Islam, the Syariah Court granted Mohd Rizuan the custody of Prasana, while in 2010, the High Court ordered Mohd Ridzuan to return her to her mother. The police resorted to inaction in order to respect the jurisdiction of both courts. The case is still ongoing.
As an eight year-old, Banggarma Subramaniam was placed in a children’s home and was raised as Siti Hasnah Vanggarama Abdullah after an officer from the Islamic Religious Affairs Department converted her to Islam. She rediscovered her Hindu identity as a teenager and later in her adulthood went on to marry a Hindu man.
She could not register her marriage and could not name her partner as the father to her children because they were officially of two different religions.
In 2010, the High Court decided that civil court has no jurisdiction over her case and it should be heard in Syariah Court. The case is still unresolved.
Teoh Cheng Cheng
On June 12 2014, the body of the deceased, Teoh Cheng Cheng was taken by Islamic religious authorities amidst Taoist funeral.
Penang Islamic Affairs Council has records of Teoh converting to Islam. However, upon detection of inconsistencies of the documents and hearing testimonies from her family, the Syariah High Court of Penang ordered for the remains to be buried in accordance with the Taoist rituals.
Audi Bin Ali