The decisions of the civil courts in two landmark cases have stirred up a controversy and have been strongly criticized by non-governmental oragnisations (NGOs). One involves the religious status of two young children, whose father had converted to Islam, and the other the alleged apostasy of four adult Muslims.

They criticise the civil courts for not upholding the constitutionally guaranteed freedom of religion which they claim has led to the erosion of civil liberties. Their criticism is unfounded and based on a misrepresentation of the issues, an erroneous interpretation of the Federal Constitution, and a lack of understanding of the history of this nation.

In the conversion case, Dr Jeyaganesh Mogarajah, (now Dr Muhammad Ridzuan Mogarajah), embraced the Islamic faith. At the time of his conversion, he was married to Shamala Sathyyaseelan and they had two young children. According to Ridzuan, he had discussed his intention to become a Muslim with Shamala even before they were married and she herself had orally agreed to convert.

Ridzuan decided that the children should be Muslims and, therefore, had them 'converted' to Islam. Shamala disputed the 'conversion' and filed a case in the High Court to have the 'conversion' nullified and seeking custody of the children. The court refused to nullify the 'conversion' on the ground that it had no jurisdiction but gave custody of the children to Shamala. The Shariah Court, on the other hand, gave custody of the children to Ridzuan.

The use of the term 'converted' is misleading giving the impression that the children who were of tender age took the Shahada, fully understanding its meaning and implications. The only issue in this case is: 'where one of the parents has converted to Islam, who has the right to decide the religion of their children - the mother, the father, the civil courts or the Shariah courts'.

Under the English Common Law which was imported into this country under colonial rule, it is the father who has the right to determine the religion of his children. The present position in common law countries is that where there is a dispute between parents concerning the religion of their children, the civil courts will decide the dispute based on the paramount interest of the children.

This issue has not come for adjudication before the Shariah courts because the Constitution bars access to the non-converting parent. In this case, the Mufti of the Federal Territory has given an opinion to the High Court trying the case that upon any one of the parents embracing Islam their minor children are presumed to be Muslims. His opinion has not been tested, either in the civil court or in the Shariah court. The proper forum to decide this question is the Shariah court and not the civil courts which lack competence in Shariah matters.

Great difficulties

The real problem in this case is that Shamala, the non-Muslim mother, has been denied access to the Shariah courts, not by Islamic Law but by the Constitution. Therefore, the solution lies in providing access to non-Muslims to the Shariah judicial system. They must be given the right to elect to bring any dispute involving the interpretation of Islamic Law to the Shariah court.

Even in the civil judicial system, conversion cases involving parental dispute over the religion of their children can create great difficulties in deciding the issue. One party will inevitably be denied the right to determine their children's religion. That does not mean that she has been denied her basic human rights or her constitutionally guaranteed freedom of religion under Article 11.

For example, if a Hindu mother converted to Roman Catholicism and wanted her infant daughter to be Roman Catholic while the Hindu father wanted her to be Hindu, how would the civil court decide the dispute?

In considering the paramount interest of the child would it evaluate and decide on the merits of the teachings of the two different religions? Will not a decision on such a sensitive issue lead to religious conflicts?

The NGOs should have carefully considered these questions before rushing to print to accuse the civil courts of not upholding the constitutionally guaranteed freedom of religion and thereby facilitating the erosion of civil liberties.

In the apostasy cases, the Federal Court was right in dismissing the appeal on the ground that the civil courts have no jurisdiction on the matter before the court. Whether one is a Muslim or an apostate is within the exclusive jurisdiction of the Shariah courts.

In Islam there is no compulsion in matters of religion. But every Muslim has a covenant with God to live according to Islamic teachings. If a person wants to come out of this covenant he has to do so in accordance with Islamic Law. The Shariah Court has the powers to declare a person an apostate if he voluntarily renounces or intentionally works against Islam.

Before declaring a person an apostate, the Shariah court must be satisfied that the renunciation is voluntary and not due to threat or inducement. It must also ensure that it is not part of a scheme to defame Islam and to bring it into disrepute, ridicule and contempt among the public. If there is incontrovertible evidence of such a scheme then the apostate must be tried and punished.

The NGOs who are screaming about the 'erosion of the freedom of religion' in Malaysia must realise that Islam and the Shariah enjoy a special position rooted in our history. Before the advent of British colonialism, the states that comprise Malaysia were Islamic states where the Shariah was supreme. Even the colonial judiciary accepted Islamic Law as the law of the land and not foreign law.

Historical facts

It is the colonial authorities who marginalised the application of Islamic Law, limiting it to a few matters - family law, inheritance and some minor crimes. Only Muslims had access to the Shariah courts. Consequently, Islamic Law was unable to develop to provide answers to the legal issues thrown up by the changing political and socio-economic order.

Had it not been for British colonialism, Islamic Law would be the law of this land. The British colonial official, RJ Wilkinson, wrote: "There can be no doubt the Muslim Law would have ended by becoming the law of Malaya had not British law stepped in to check it."

It is in recognition of these historical facts that Islam has been entrenched in the Constitution as the religion of the Federation. The Constitution also provides for an independent Shariah judicial system but unfortunately it replicates the colonial tradition by limiting the jurisdiction of the Shariah courts to a few matters relating to religion and family.

There is a growing awareness and demand by the Muslims in this country that Islam should be given a more prominent role in the public sphere. The commitment of the present government to promote Islam Hadhari is a reflection of this development. One area where the authorities should focus is the upgrading of the Shariah judicial system by increasing its jurisdiction and improving the competence and skills of its judicial officers.

With the increasing use of Islamic principles and norms in commercial transactions, there is no reason why commercial disputes arising from such transactions should be adjudicated by judges in the civil judiciary who have no training in Islamic Law and not by competent Shariah judges in an improved and upgraded Shariah judiciary. The jurisdiction of the Shariah courts must be increased to handle such disputes.

Increasing the jurisdiction of the Shariah courts will not impinge on the rights of non-Muslims. On the contrary, it will provide them an additional forum to ventilate their grievances if they choose to. On the other hand denying Muslims their right to be judged by the Shariah would constitute a serious violation of their human rights. Both the civil and the Shariah judicial systems can co-exist and function harmoniously to satisfy the needs of the different communities for conflict resolution mechanisms and justice. What is probably needed is a Shariah Bench in the Federal Court, composed of judges well-qualified in civil law and Islamic Law, to resolve any conflicts that may arise between the two systems.

FATHIMA IDRIS is a resident in Penang with an LLB qualification. She has an interest in inter-ethnic, inter-religious issues and in human conflicts generally.