KUALA LUMPUR, April 16 — Insisting that Islam is the pre-eminent religion in Malaysia, a former judge has joined a growing chorus for the Shariah court to expand its jurisdiction to cover non-Muslims, as controversy rages over child custody in a mixed-faith marriage.
Retired Court of Appeals judge Datuk Mohd Noor Abdullah disagreed that the civil court should have jurisdiction over child support and custody disputes between a non-Muslim and the spouse who has converted to Islam, even though the couple’s marriage was registered at the civil court.
“You forgot that Islam is the religion of the state. It puts Islam at a different level,” Mohd Noor told The Malay Mail Online and Bernama in a joint-interview yesterday.
The judge, who retired in 2006, stressed that Islam is the “national religion”, citing Article 3(1) of the Federal Constitution which states that Islam is the “religion of the Federation”.
As such, he said it was “not right” to deny the non-Muslim parent a hearing at the Shariah court in child custody disputes.
“The Muslim court should be universal,” Mohd Noor said.
While the civil courts cover all regardless of their religious background, Malaysia also has an established Islamic court system, with jurisdiction limited to Muslims.
The boundaries between the civil and Shariah court's jurisdictions have been blurred recently again with a bitter child custody dispute between a Hindu woman and her estranged Muslim convert husband.
Citing from Islamic scripture, the former judge related how Prophet Muhammad had once heard a dispute between a Muslim and a Jew who was accused of stealing some armour. The prophet, Mohd Noor said, had decided in favour of the Jew, after finding the Muslim had lied and tried to shift the blame.
But Mohd Noor also insisted that the civil court should not interfere with the Shariah court’s decisions on maintenance and custody award in divorce cases.
He said the civil court could safeguard the non-Muslim spouse’s rights by granting visitation rights, among others.
He added that to be fair, the courts could issue the Muslim and non-Muslim spouses joint custody of their children, and proposed the offspring be sent to boarding school so that both parents would have equal access.
The former judge also interpreted the word “parent” in Article 12(4) of the Federal Constitution — which states that the religion of a person below 18 years of age shall be decided by his “parent” or “guardian” — as the singular form.
“Generally, the singular involves the plural, but there are times when Parliament intends singular to be singular. The constitution purposely said ‘parent’ because it is difficult to get both parents to agree,” Mohd Noor said.
The call for the Shariah Court to open its doors to non-Muslims in inter-religious child custody disputes was first mooted by the Malaysian Muslim Lawyers’ Association, and backed by Perak Mufti Tan Sri Dr Harussani Zakaria.
Their remarks come amid nationwide furore over a Hindu mother, S. Deepa, who last week won full custody of her two children ― a nine-year-old daughter and a six-year-old son — at the Seremban High Court.
The estranged husband, a Muslim convert born N. Viran who now goes by Izwan Abdullah, had snatched the boy from the mother two days later, insisting he too had full custody as awarded by the Shariah Court, after he converted their children to Islam last year without his wife’s consent or knowledge.
In its April 7 ruling, the Seremban High Court said Deepa and Viran had married in a civil union, which put the dissolution of their marriage outside the jurisdiction of the Shariah courts.
The police have refused to act on Deepa’s abduction complaint against the child’s father, with Inspector-General of Police Tan Sri Khalid Abu Bakar citing the two conflicting court orders as the reason.
MALAYMAILONLINE
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