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Law Forum – Conversion to Islam: Art 121(1A) of the Federal Constitution, Subashini & Shamala Revisited

July 24th, 2008 · 2 Comments

I find this law forum is very useful and timely to the general public.

Therefore, I reproduce the email sent by Lalitha Menon, the Chairperson of Family Law Committee, Bar Council Malaysia for your reference.

“We are pleased to inform you that the Family Law Committee of the Bar Council Malaysia will be organising a half-day forum for the General Public. The details are set out as below:

Title: “Conversion to Islam: Art 121(1A) of the Federal Constitution, Subashini & Shamala Revisited”

Date: 9th August 2008

Time: 8.30am-1.00pm

Venue: Bar Council Auditorium, 1st Floor, Bar Council Secretariat, No.13, 15 & 17, Leboh Pasar Besar, 50050, Kuala Lumpur

Registration: RM 20 per person (Refreshments will be provided)

Preamble

How should conflicts in matrimonial and family matters i.e. divorce, custody, maintenance and distribution be resolved, upon conversion to Islam of one party in a non-Muslim marriage: Ought the Civil Courts to have exclusive jurisdiction?

The talkshow will be in two (2) parts:-

(1) The Human & Social Perspective: Effect on families faced with such conflicts.

Come hear Civil Society representatives and family members of converts share real-life stories on the Human & Social Perspective of Art 121 (1A).

(2) The Legal Perspective: Subashini and Shamala Revisited: Should Article 121(1A) of the Federal Constitution be reviewed and amended?

Join talkshow host/moderator Zarizana Abdul Aziz (K Ahmad & Yong) with:

* Tuan Dr. Haji Naim Haji Mokhtar (Pendakwa Syarie, Jabatan Agama Islam Wilayah Persekutuan & ex-Syariah Court Judge)
* Dr. Wan Azhar Wan Ahmad (Pengarah Pusat Syariah Undang-undang dan Sains Politik/Fellow Kanan, Institut Kefahaman Islam Malaysia)
* Ravi Nekoo (Ravi Nekoo & Pushpa Ratnam)
* K. Shanmuga (Kanesalingam & Co)
* Mohamed Haniff Khatri Abdulla (Haniff Khatri)

Who should attend?


Law practitioners
Ministry of Family, Women and Community Development
AG Chambers
Civil Society/NGOs
Religious Bodies
University/College administrators and students
General Public

For further enquiries, please contact 03-2031 3003 Sumitha (194) / Vasantha (210). You can either e-mail your confirmation to Sumitha at sumitha@malaysianbar.org.my / Vasantha at vasantha@malaysianbar.org.my or fax the registration form to the Secretariat (at 03-20261313 / 20725818 / 20342825).
Introduction:

The forum is inter alia one of several projects by the Family Law Committee of the Bar Council Malaysia to draw attention to the various areas of family law that requires urgent reform.

It is of concern to the Bar Council that the issue of conversion to Islam of one spouse without the knowledge of the spouse and the conversion to Islam of the children by one spouse without the knowledge and consent of the other spouse has caused so much grief and discord to families from the ensuing legal wrangles.

The legal implications are far reaching beyond the question of the jurisdiction of the Courts as the division of properties, custody battles for the children and the marital status of the couples and issue of alimonies are thrust into the open and into turmoil.

Objective:

· To highlight the plight of families embroiled in the legal wrangles brought on by the present conflicts in the law;

· To have an open, frank and mature forum where views on both sides of the religious divide; and
The Forum:

The forum will seek to address the following:-

How should conflicts in matrimonial and family matters i.e. divorce, custody, maintenance and distribution be resolved, upon conversion to Islam of one party in a non-Muslim marriage: Ought the Civil Courts to have exclusive jurisdiction?

The forum will be conducted in a talkshow style and speakers will give a brief 10-minute outline of their respective perspectives and thereafter participate spontaneously in answering questions from the moderator and the floor. We hope to have an open, frank and mature forum with views on both sides of the religious divide.

Synopsis:

By Section 8 of Act A704, which came into force on 10.6.1988, a new Article 121(1A) was inserted into the Malaysian Constitution.

Article 121(1A) reads:

“The courts referred to in Clause 1 (i.e. the two High Courts of Malaya and Sabah and Sarawak and the inferior courts provided by the federal law) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts”.

Muslims in this country are governed by Islamic Family Law. Article 121(1A) sought to grant exclusive jurisdiction in the administration of Syariah law to Syariah courts. Before the enactment of Article 121(1A), the decisions of the Syariah courts could be reviewed by the Civil High Courts.

Parliament’s intention was plain or so it seemed. The legitimate expectation was that the amendment would reduce jurisdictional conflicts and friction between the Syariah courts and the Civil courts.

However, Lina Joy and her tussle with the National Registration Department to change particulars in her identity card to delete the word “Islam” therein on the basis she was no longer a Muslim; Everest climber M Moorthy and the Federal Territory Islamic Religious Department as to whether they or Moorty’s widow, S Kaliammal, a Hindu, had the right to bury the deceased, and in which faith; Subashini and Shamala, family law cases involving a non-Muslim marriage under the Law Reform (Marriage and Divorce) Act 1976 where one spouse had converted to Islam and had converted the children of the marriage without the knowledge or consent of the other non-Muslim spouse, are all cases, to name a few, which have brought to the fore that divisive and unresolved issues remain and that the controversy over which court shall have jurisdiction continues unabated despite and/or by reason of Article 121(1A) of the Federal Constitution.

The recent Federal Court ruling in Subashini seen as an opportunity for our Apex Court to, once and for all, rule conclusively on the jurisdictional conflicts plaguing the Syariah and Civil courts, failed miserably to resolve the thorny issues. Instead, while confirming that the civil courts continue to retain jurisdiction in respect of the non-Muslim marriage contracted between the parties and, that the couple are bound by their obligations under the 1976 Act under civil law, the majority did not rule that the High Court had exclusive jurisdiction. They gave the husband, the converting spouse the unilateral right to convert the religion of their minor child to Islam and ruled too that the converting husband was entitled to go to the Syariah courts to obtain orders over custody, guardianship, property and maintenance despite his wife, a non-Muslim not having a right of audience in the Syariah courts.

The Federal Court ruling, a judicial pronouncement from the highest court in the land on the controversial issues, rather than douse the flames, had instead stoked the fire!

We ask …should Article 121(1A) be reviewed and amended?

The Prime Minister recently announced that the Government would soon introduce a regulation requiring non-Muslims wishing to convert to Islam to inform their families before doing so.

To quote, the Prime Minister said

“We will have a regulation. When a person wants to convert to Islam, we have to ask him whether his wife knows about it. If people want to convert, there is nothing wrong, why must they hide? Tell them (the family) …we don’t want problems later when the man converts and converts the children also, when the wife has rights too,”

We ask …how will the introduction of the regulation solve the problem?”

Tags: Law News

2 responses so far ↓

  • 1 colbert // Aug 8, 2008 at 7:56 pm

    hi there. Eddie. Are you a lawyer. I did not have a chance to speak to you at that Web Gathering last month

  • 2 Eddie Law // Aug 9, 2008 at 12:40 pm

    Hi colbert, nice to meet you here. I was in practice but no more now. Well correctly speaking I am still a lawyer now. We shall spend sometimes to have a good chat next time when we meet again.

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