Friday, May 08, 2009

Syariah Cases in Malaysia sentences against the non Muslim leave much to be desired. What I wrote and comment may not sit well with the readers but I must state my case. I stand corrected if any I said is wrong. In Malaysia Islam and Islamic Courts are under the purview of the Malay Rulers and if the States have no Ruler than it comes under the King thus the Syariah Law within each state can mete different sentences and different rulings or laws can be pass making it a wee bit ridiculous. On top of the un-uniformity of the law, it also suffer from lack of continuity. Sentences by the judges(Kadi ) is not taken as precedent thus new judges has to make or can make new sentences without referring to the past judgment. Thus in Penang when the judge make a ruling for a convert right to go back to her religion was later quash by an appeal base on his (new judge) conviction without referring to the former. This is sad. I also like to refer to certain cases, which I know personally, where one convert just to have a right over their children. This has to stop. The news below shows you a story like it.
This is an article that I comment on. Happy reading the comment and the articles in question.

Carpenter fights wife over baby’s conversion to Islam

KUALA LUMPUR, March 5 — An ethnic Chinese man is challenging the conversion of his baby daughter to Islam by his estranged wife, a lawyer said today the latest interreligious dispute to rock mainly Muslim Malaysia.

Hoo Ying Soon, a 28-year-old carpenter, was shocked when he received a notice two days ago from the Islamic Shariah court granting temporary custody of their 15-month-old daughter to his wife, said his lawyer Tang Jay Son.

He was told that his wife, Chew Yin Yin, 23, embraced Islam on 28 Jan while his daughter was converted on 3 Feb, Tang said.

The couple, both Buddhists, wedded Feb 2007 in southern Negeri Sembilan state but their marriage broke down in Sept, he said.

“Hoo will challenge the conversion of his daughter in the High Court because it was done unilaterally by the mother without the consent of the father. They are not divorced yet,” Tang told The Associated Press.

Religious issues are extremely sensitive in Malaysia, where about 60 per cent of the 27 million people are Muslims. Buddhist, Christian and Hindu minorities have accepted Islam’s dominance but in recent years voiced fears that courts are unfairly asserting the supremacy of Islam, which is Malaysia’s official religion.

Malaysia has a dual court system. Muslims are governed by the Islamic Shariah courts and non-Muslims, civil courts. But interreligious disputes almost always end up in Shariah courts, and end in favour of Muslims.

Tang said Hoo’s wife, who has adopted the name Siti Zubaidah Chew Abdullah, has filed for divorce in the Islamic court with a hearing due later today.

Hoo will seek an injunction in the Shariah court to prevent his wife from taking custody of their child, he said.

He has filed a suit in the High Court to question his daughter’s conversion and to seek guardianship over their child, and wants the Islamic court to wait for the civil court’s decision, he said. The high court has set 10 March for hearing.

“He has no problems with his wife converting to Islam but he feels it is unfair to convert their daughter,” Tang said.

Hoo also is concerned that their child, Hoo Joey, has been renamed Nurul Syuhada Chew Abdullah, which doesn’t carry his surname, he added.

In a high profile case in 2007, an ethnic Hindu woman failed to persuade the civil court to ban her husband, who had embraced Islam, from converting their sons. — AP

The case of Indira Gandhi and Rizuan Abdullah

MAY 7 — Much has been said about this case. I have been quoted twice.

The first quote agrees with the shariah court’s decision, the second does not. Confusion? Most definitely, but not on my part, I hope!

Given the intricacies of the case, the confusion is quite understandable.

However first I need to clarify, the shariah court’s judgement or decision was never discussed. When I was first quoted saying I agreed, I objected. I was then quoted as having said I disagreed! I objected as it was never specifically discussed or referred to. As such agreement or disagreement was never the issue. Anyway, the problem runs deeper than that.

The problem lies in a situation where the two court systems do not talk to one another as though they exist in two different worlds.

Problems involving a Muslim and a non-Muslim are then heard separately and two pronouncements are achieved, each then vying for supremacy. Is there a problem for these two institutions to talk to one another and coordinate in the interests of justice? Are we living in two different worlds or two different countries thousands of miles apart?

I for one do not see the problem for interaction and I definitely see the need.

Even in the times of the Prophet (MPBUH) the Prophet himself would meet with the Jewish scholars in Medina and discussed with them issues of theology and law. Said Ramadan in his book, ‘Islamic Law – Its scope and Equity’ wrote, “Ibn Hisham recorded that the Bayt Al-Midras was an active educational centre for the Jews of Medina during the lifetime of the Prophet. He even used to visit it and answered many questions on Islam.

“When a Jew and Jewess were brought before him in a case of adultery, he called on the Rabbis of the Bayt Al-Midras to consult their knowledge of the Torah for the punishment applicable in the case”.

Living under one leadership it was impossible for there not to be any form of interaction between the two communities. Yet here in Malaysia, under the leadership of Umno/BN, we have a dual system but the two do not talk to one another. It maybe alright if there are no common issues but surely cases like this has happened frequently enough for us to understand the need for such interaction. I am sure the learned personalities who head these institutions are more than capable of finding a just solution if given the chance.

The problem, I believe, is that the Umno/BN government is unwilling to allow such interaction. Believing in their own misconceptions, particularly about Islam and Islamic law, they assume that no common solution can be found and as such have taken it upon themselves to decide for everyone.

A decision by the Cabinet denies the courts, be it shariah or civil, its rightful role. It denied at least one parent his or her right and by so doing, denies the children their rights as well. I disagree with the decision by the Cabinet for these reasons. It short-circuits the process and like all short circuits, gives rise to bigger problems.

In dealing with this issue and those like it, which is not as numerous as some may think given the publicity accorded to it and it’s sensitive nature, we should return to basic principles. The first basic principle is the principle of justice.

The Principle of Justice

As a Muslim, I know that the Islamic courts are supposed to judge justly between the parties concerned, even if one party is Muslim and the other non-Muslim.

Justice is a pivotal principle in the message of Islam. The Quran says in Surah An-Nisaa’ or ‘The Women’ verse 58 : “….and when you judge between men, judge with justice…”.

The Arabic word used is ‘An-Naas’ or men or more correctly ‘people’ and it includes both Muslims and non-Muslims as well as male and female.

Also in Surah Al-Maidah (The Tablespread), in verse 8 Allah says : “…be steadfast for the sake of Allah, being witnesses for justice. And let not your enmity towards a people lead you to act unjustly. Be just as it is closer to being God-fearing…”

Here the warning against being unjust against any particular community, be they Muslim or otherwise is clear. Clearer still is the equating of justice to being God-fearing.

Given the above, the Islamic courts are expected to act justly by acknowledging the rights of both parents over the children. These rights are not recognised by the Cabinet short-circuit which cancels all claims by the parent who converts. Does conversion mean the nullification of these rights? I don’t think so. No, I know it doesn’t..

Islamic law recognises the rights of both parents and although a divorce occurs, plus a conversion, these rights are still intact. The Islamic courts are then to find a judgement which would recognise the rights of both parties and give justice to them both.

The second basic principle is that religion is a matter of belief and conviction resulting from divine guidance. In Islam we call this divine guidance “Hedayah”.

The question of Hedayah

The Quran says in Surah Yunus or Jonah verse 99;

“And if your Lord had enforced His will, surely all who are on the earth would have believed (in Islam) together. Will you then use force on men (An-Naas) in order that they become believers? And no soul can believe except by the permission of Allah and He casts humiliation upon those who do not use their powers of reasoning.”

Those who do not use their powers of reasoning also include those who wish to forcefully convert other people.

Given that religion is a question of Hedayah or Divine Guidance and cannot be forced unto an individual, the best that one can do is to present one’s religion as convincingly as is possible so as to influence the other party. The rest is in the hands of God.

Even the Holy Prophet (MPBUH) adhered to this principle when he had to surrender Abu Jandal to the non-believers of Mecca due to an agreement signed prior to Abu Jandal’s migration to Medina. The Prophet said, “Oh Abu Jandal, persevere and put trust in Allah! Allah will surely find a way out for you and those who are oppressed like you. We have signed a peace treaty with the Quraish. It is imperative that we fulfil the terms of the agreement which was made in the name of Allah and we cannot commit treachery towards them!”

It was a difficult decision but one based on the belief that faith cannot be forced unto someone nor can one be forced into disbelief.

The surrender of Abu Jandal was even more difficult as Abu Jandal was an adult Muslim, converting out of his own free will but such were the circumstances then. And as it turned out Abu Jandal persevered and remained a Muslim even though he was tortured by the Meccans.

The need for Ijtihad

It should be clear to all who study Islam or wish to understand Islam that Islamic law is made up of laws which are divine and as such permanent as well as laws which are opinions expoused by learned jurists. The jurists differ on matters which are of the second category, thus the reason for the existence of the various schools of Islamic jurisprudence.

An example of a difference of opinion between the companions of the Prophet is quoted by Said Ramadan in the above mentioned book. A case was judged by Ali and Zaid, both senior companions of the Prophet (MPBUH). Umar asked the litigant on the judgement given. When the man told him Umar said, “Had I been the judge, I would have decided differently”.

The man then asked, “Why then do you not enforce your decision, you being the Caliph?”. Umar answered, “Had it been a decision based on a specific ordinance of the Quran or the ‘Sunnah’ (The sayings and deeds of the Holy Prophet) I would do so but here it is a matter of opinion and thus we are all equal”.

‘Opinion’ is derived by a process termed according to Islamic juristic terminology as ‘Ijtihad’ or the striving for a solution or decision based on principles derived from the Quran and the Sunnah.

The justification for its use is the discussion between the Prophet and Muadh Bin Jabal on the eve of the latter’s departure to Yemen where he was assigned as a judge. The Prophet asked Muadh, “What will you judge by?” Muadh replied “According to the Quran”.

“What if you do not find it therein?” asked the Prophet. “Then according to the Sunnah of the Prophet”, replied Muadh. “And if you do not find it therein”, asked the Prophet again. “Then I will do Ijtihad (exert myself to form an own judgement which conforms to the objectives of the two initial sources)”, replied Muadh. Thereupon the Prophet said : “Praise be to God who has guided the messenger of His Prophet to that which pleases His Prophet.”

There is a tendency for the Islamic Court to simplify the problem of giving judgement by refering to judgements made from another era and implement it lock, stock and barrel, in our times. This may be acceptable in some of the cases but definitely not all.

This comes from their unwillingness to partake in ‘Ijtihad’ whereas even in the case of the Shafiite school of Islamic Jurisprudence, it is acknowledged by the master himself, meaning Imam Shafii (May God be pleased with him), that juristic opinion can change due to different circumstances and conditions.

This is evident from the existence of his ‘Qaul Qadim’ or ‘early opinion’ and ‘Qaul Jadid’ or new opinion.

When asked about the two Shafii clarified saying that the earlier opinion was based on what he saw then and the new opinion is based on what he sees now.

It is my humble opinion that judgements made in the times of the Abbassid Caliphate, though just and prudent at its time, should not be ‘copied’ without first confirming that the justice intended by its pronouncement is still achieved under our current circumstances when such judgement is implemented.

In other words, our Islamic Jurists of today should not shun nor fear the practice of Ijtihad but should on the contrary revive its practice and fulfill the basic objectives of the Shariah, namely justice.


Based on the two very basic principles and the principle of Ijtihad above, I would venture to say that the case should be handled as follows.

The question of custody be decided in the manner it is decided in any other case. The religion of both parents is put aside when making this decision.

The rights of both parents to teach their children their respective religion is acknowledged and the court is to ensure that both parents are to provide their fullest cooperation in this matter.

The children then decide for themselves their religion of choice when they come of age.

I hasten to add that this is my personal opinion and am willing to stand corrected should what is proposed contradicts the two basic principles mentioned earlier. I am the first to acknowledge that I am not qualified to undertake such a decision but I present the above so as to initiate the necessary discussion on the matter.

For Muslims who wish to see the day when Islamic Law becomes the law of the land, as I do, our ability to prove the justness of the Islamic legal system, especially towards non-Muslims is of utmost importance.

Otherwise why would they wish or allow the Islamic legal system to take precedence? As such, this basic nature of Islamic law, that which emphasises justice for all, needs to be shown and highlighted at all times.

Islamic law should not be seen as a law which discriminates in favour of the Muslims as if that is the perception, then we would have done Islam a great disservice irrespective of the short term ‘gains’ some consider we would have made.

Allah knows best.

Comments (8)Add Comment
written by samuel sing, May 07, 2009
Dear Yb Khaled,

You have put forward a very good argument on behalf of the religion, unfortunately the practical side of syariah law in Malaysia is quite something else. the issue at hand is not and never was the religion but sense of justice and fairness.

Please look at the state of Malaysian syariah laws. Each state has its own, we don't even have a standardised laws in all Malaysian states, just because the Sultans is head of religion, each state then passes laws accordingly.

Secondly please look into the state of women divorced by men. The laws in one state cannot be enforced in another state. Until today there's no women syariah judges, why? To ensure male hegemoney??? How many muslim women who suffer financial difficulties because of the men have run to another state and refuse to pay?

In Malaysia today , the state determines the religion of Muslims, the case of Lina Joy clearly exeplifies the situation. Why is that so, very simple, to ensure there sufficient Muslims vote bank in the country. Syariah laws clearly states that the syariah courts shall detrmine if Muslim can leave his faith. I find this utterly ridiculuos, even in Indonesia they have no such laws.

Furthermore, you fail to mention, the situation where a muslim convert is not obliged in any manner to pay for the maintenance for ex-marital partner or share any property during their marriage. Islamic laws also prohibit non muslims receive any financial compensation in any manner from the muslim.

Until and unless these issues are resolved for the non muslim partner, the question of trusting syariah courts to get fair deal is somewhat elusive to the non muslim. Until today, no syariah court has ordered a muslim convert to pay alimony and wealth distribution and child maintenance to his ex-non muslim partner.

Please correct me if i am wrong on the above matter.
written by Penangite, May 07, 2009
How can you have 2 divorced parents teaching their children to follow different religions? Hinduism teaches you about Ahimsa (non-injury), reincarnation, sanskrit mantras and so on. Islam teaches you, among other things, that Hindus are kafirs. If you do that to the children, will you not be confusing the children? How do you expect them to grow up as balanced adults?

Second, as a non-Muslim, why should Indira Gandhi go to a syariah court - when she does not understand the Syariah law? Hypothetically, if the shoe was on the other foot, how would a Muslim like to go to a Jewish or Christian "court"? Even if the Jews/Christians were to tell the Muslim that they would be fair? This suggestion of yours sounds very strange to me.

Here is my view:
The parents entered a contract when they got married. If the man decides to become a Muslim, that's fine, but it is unreasonable to confuse the children with Islam when they have been brought up as Hindus in the first place. Let the children continue to be brought up as Hindus. Let the father continue to have visitation rights (as agreed by civil law). When the children turn say 18 or 21, then the father can speak to his children about Islam. If the children wish to convert at that point, then thats a decision the children make as adults.

This is my view for all combinations of religions - just just for Hindus converting to Islam.

It appears to me that in this case, the guy is using his conversion to Islam to get at his wife for their disagreements. I'm not sure this is due to his love for Islam. And I am not sure Muslims should allow Islam to be "used" in this manner.
written by usaid, May 07, 2009
YB Khalid,
Islamic law is something which only confined with provision in Hudud and Qisas, and it's also not only laws for the malays, as islam is universal. The main objective of it is serving justice. In my oppinion our existing laws which can be found in our Statutes can be considered as Islamic, as long as it not contradict with Al-Quran and al-Sunnah. The problem is, our community do not understand this. they only things that islamic law only cutting hand, and stoning ppl to death.Actually it is not the essence of Islamic Law.

i think it is our duty to make people discover the beauty and 'hikmah' of Islamic system. We are the one to be blame if people keep saying that islam shall be separated from the system. People object to it, because there is no clear example for it. Only if we can show them how peaceful Islam controlled the world in the past..
written by wan zaharizan, May 08, 2009

Let's debate Khalid on Islamic Law as I gather that you should be well verse with it since being a member of the Islamic Party. Is Syariah God's Law, her own words or Inspired by the religion? Tell me Khalid deep within your heart an honest answer. To me it is inspired from the religion thus it is promulgated by people. It's procedures are all man made. Yes. There are God commands on stealing ,adultery, killing a life but others on drinking, fornication, whoring and homosexuality it remain quiet on the sentences. You can find more on how the law was set from the hadiths, yet I maintain it is one's idea of right that make up the syariah law. The evidence law and the commercial law in the Syariah law are terribly outdated and this is a fact.

When we make laws we must rip apart sentimental values that is always a bane with the Malays. They romanticize too much, no wonder the ladies are falling for Shah Rukh khan from Bangladesh for that is the Syche of the Malays. Give them Engleberk Humperdick anytime and they go gaga. Give them a Malay who could recite some verses of the Quran and these people are holy and if they come from Arabia then they become Syed because the malays are foolish and Khalid compare to your brother Sharil you are no where.

Having said that aren't we ask to emulate the Prophet? Do we emulate his persona or his attribute? Where is the hadanah , bijaksana, tawaduk, humilty that we should emulate yet it is the garb that we seek to adorn ourselves with, forgetting it is an Arab Dress. Let's talk about his action in proscribing laws. Some of the law were harsh but it was that time. He was a Muslim leader, he was maasum yet he remind us not to forget he is human. He would cringe in his bed with the maulud festivities because he detest idolism and he ask his followers many times not to worship him but God. Thus he was a man and he was an Arab dispensing laws which in Arab land is fair but not so now. Look at how he dispense justice, remember the lady who committed adultery? She came three times to Muhammad and ask to be punish and each time was ask to go back until the third time. They dug a hole and she was covered up waist high and people start throwing stones at her, she can't stand the pain and she manage to free herself and she ran for her life. The Mob was angry and was going to give chase but stop by the prophet and what did he uttered 'enough she will receive punishment by God let her be'.

Do you understand Khalid that the law must be forgiving and not meant to destroy and be unfair to others and tell me when has the Syariah Law in Malaysia has been fair? From Subhashini case, to Sharmala now Indira and who could forget Moorthy case. Who has a right over a dead body, A widow who took care of her husband selflessly or the Ummah whom after embracing him as a Muslim never ever told the wife and left him to be hindoo and pray to Siva. We might have save his soul but surely we have no right on the vassal who we have neglected!! Has justice been serve or denied. Yet the Muslim would say we cannot burn the body,it is against Islam, who says that!!! Idiots these Malays are for they have forgotten in times of plague we are allowed to burn (jadi harus) so it can be done. After all we do not need the body to pray to our brothers ada sembahyang ghaib!! ingattu Khalid justice was not serve then and do you remember the Chinese Man who was invalid due to a stroke, with a master stroke of the pen his son who is our saudara decided to save him by converting him at his deathbed, and he did not have to recite and not even sign the converting papers, it was only a thumbprint. Yet the Shariah declare he is a Muslim. Why thumbprint is accepted but not DNA?

That is the law of evidence in Islam. What the Cabinet did was fair. It decided for the courts to be impartial because time and again when the judge is Muslim presiding over the case justice seem not be fair. Humans are after all emotional and especially the Malays when it comes to religious judgment can be seen unfair to others, especially concerning religion. Remember our former Lord President Tun Suffian whose wife Bunny died of Cancer. She was Christian, she willed that her body be cremated but when she died her body was taken away by Suffian's brother who claim she has been converted by him and buried against her wishes. In the 70's the people manning the National Mosque were progressive in fact according to RPK they advice him, his wife need not convert but not now. Suffian was from the 70's, he was left in tatters and died not back in Kuala Kangsar but in Kuala Lumpur at someone house. Where was the justice in this case? Tell me Khalid can I trust the man in robe in Malaysia, not at all! Don't be an apologist be a reformist!


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