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Sunday, 04 May 2008 12:51pm
New Sunday Times
by Aniza Damis
THE occasion of conversion seems like the perfect opportunity for the crossing of cultural and religious divides and for strengthening ties, in spite of differences. However, in Malaysia, some conversions only cause grief and discord, especially when the family is not informed of a person’s conversion. Aniza Damis speaks to Minister in the Prime Minister’s Department Datuk Ahmad Zahid Hamidi, a self-confessed non-ulama from a line of ulama in the family (though not lacking in religious education, he points out) on what the government is doing to bring harmony to such a thorny issue
Q: A few weeks ago, the prime minister said he wanted converts to Islam to inform their families first. Last week, you had an Islamic and civil law co-ordination conference to discuss the issue. How did that meeting go?
A: I'd like to clarify this: What the PM told us was "to inform their family". It doesn't mean they have to inform their family first before they convert.
"Inform" means they can inform after the conversion takes place.
So, we are formulating now how that information will be presented to the family.
Q: What are you considering?
A: Firstly, all converts have to register with the state religious department. That is the law that is being gazetted.
Q: And what if he doesn't register?
A: He has to register.
Q: What if he converts, does not register, then dies. Does he count as a Muslim or not?
A: We do not know. That's why the problem arises.
Q: So, he has to register?
A: Yes. And a card (of conversion) will be given to him. The card is an evidence of the conversion.
The second thing we are considering is whether the convert has a will. We are working with Amanah Raya Bhd for the will to be registered with the company.
This is so that, if there is any dispute over the will, three things will automatically be considered: First of all, on the harta sepencarian (property commonly acquired) of the convert and his or her civil law spouse; the will will show that the harta sepencarian is for the previous (non-Muslim civil law) family.
Secondly, if that person doesn't have a family, then the convert's property will be distributed according to Islamic procedure.
Thirdly, if there are children in the civil law marriage, regardless of whether it is the husband or the wife who converts, the responsibility still falls on the father. This means financial and emotional maintenance -- whatever that is needed in taking care of the children.
And fourthly, if the convert has parents, what are his responsibility to his parents? This responsibility of taking care of the parent does not break or end after a conversion. Converts to Islam should not cut off their relationship with their parents. Their responsibility to take care of their parents is still there.
Q: So, if he dies without a will...?
A: The conversion card is there as evidence.
Q: The card tells you that he is Muslim. But what if he leaves behind non-Muslim relatives, including his mother and father, and children. But he has no will. What happens?
A: No will is no will. But the evidence shows that this person is a Muslim.
Q: What happens to his property?
A: The non-Muslim family can always go to the civil court.
Q: Does that mean that his non-Muslim family has a right to that property?
A: Yes. The family can ask the civil court to decide.
Q: Civil court? It will not go to Syariah court?
A: Civil court. They can challenge through the civil court.
Q: What if he has a non-Muslim family and a Muslim family?
A: In that case, we have the faraid system, the distribution of property through the Syariah court. And failing which, the non-Muslim family can ask the civil court to decide on the distribution of property of the deceased.
Q: But if it's faraid, it will go to Syariah court. Non-Muslims don't have locus standi in the Syariah court. So, what happens?
A: The Syariah court says that the faraid goes to the stipulated next of kin. That is very clear.
Q: Does that count as Muslim or non-Muslim?
A: The Muslim first. Then, if he has non-Muslim family members, they can ask the civil court to decide.
Q: But the civil court can't decide what is in the Syariah court's jurisdiction.
A: Yes. Syariah only takes care of the Muslim. The civil court takes care of the non-Muslim. So, to deal with these dual-family issue, we are now planning to have an advisory council.
Q: What kind of advisory council, and for what purpose?
A: It is at the district and state level. The advisory council is basically a council where the Syariah lawyer and the civil lawyer will sit together, without taking the case to open court.
These issues will be resolved within that advisory council.
Q: Does this mean that there will be a stage where you've got a merger of both systems without either being Syariah or civil?
A: It's not formally merged. It's just an understanding. The council will look at what needs to be done for the next-of-kin.
Q: What if the non-Muslim family seeks help in the civil court, and the Muslim family goes to the Syariah court? What happens if the courts make different findings for the different families. What happens then?
A: This is what we discussed in the meeting. The council is not about a merging of the two court systems, but about working together. To understand each other, and to determine the role of each court. We have decided that the advisory council be set up to resolve the problems outside of court, and within the council.
Q: What are the things that they are going to look at?
A: Disputes. In terms of property distribution, responsibility of the non-Muslim next-of-kin -- all this is to be advised by the council. For instance, the balance of the property will be not only to take care of the Muslim family members, but also to take care of the non-Muslim family members. Like the parents, or even siblings.
Q: When you talk about balance of property, what do you mean?
A: When you talk about syariah, we have a faraid system. For instance, the daughter is given a percentage, the son is given a percentage. But, I believe not the whole property should be distributed to only the Muslim children of the deceased, when the deceased also has non-Muslim children. The court must also take care of this, because justice in Islam means that the deceased's property must be distributed to the non-Muslim children as well.
Q: Are you coming up with a specific system? If the non-Muslim family does not come under faraid, and if the convert decides to will one-third of his property to the non-Muslim family, the fact of the matter is that the Muslim heirs can refuse for that one-third to be given to the non-Muslim family. How would you deal with that problem?
A: Yes. That is why the council is set up, to formulate the distribution. The formula is not set yet. We are still discussing.
Q: Who is in this committee that is discussing this?
A: Among them are the state Legal Advisers for the civil side, and officers and judges from the Syariah court for the Syariah side.
Q: Do you have any non-Muslim parties in this committee?
A: Not yet.
Q: Do you intend to?
A: Later on, yes.
Q: Later on. When?
A: We are still formulating.
Q: Some non-Muslim religious groups say some of the things that need to be determined at the time of the conversion is how divorce (between the newly-converted spouse and the now left-behind non-Muslim spouse) is to be dealt with, property, inheritance, alimony, and so on. Are you looking at these issues?
A: Yes, and we are also working with the ministry of unity on this. That ministry is taking care of other religions, and we are working with them.
Q: Why is it that the committee said that the converts don't have to tell?
A: They don't have to tell first.
Q: What happens if that person's life is cut short before he's had a chance to tell his family?
A: There is the card (showing proof of conversion).
Q: But in the cases where there have been quarrels (between the non-Muslim family and the Muslim authorities), there usually already is some sort of paper evidence. But the family says they don't believe. How do we deal with it?
A: If there is a card, then it's a lucky thing. But in some cases, there isn't. That's why we need to standardise this. There must be a card.
Q: But the problem, for instance, with Everest climber M. Moorthy was, even though there was a card, the family was not informed. So, what happens if the same thing happens again? Isn't the whole idea to avoid even the briefest of conflicts with family?
A: That is what we need to standardise first. We have not formulated the matter yet. We are discussing it. What is important here is the harmony between Muslims and non-Muslims. The harmony approach has to be discussed with non-Muslims as well.
The important thing is not to create differences, but to find a point of meeting. This thing won't be solved by itself. We must do something.
OTHER STORIES: Praise from religious leaders for 'Converts must tell their family' ruling / Converts must tell their family
Ng Kee Seng, Husna Yusop and Tan Yi Liang
PETALING JAYA (April 11, 2008): MCA president Datuk Seri Ong Ka Ting today welcomed the move to set a new requirement for Muslim converts to declare their religious status to their family members.
"MCA’s stand has been consistent in pushing for such a move. However, we would like to seek clarification on the process of implementation of such a requirement."
"There should be a time period for the new convert to inform their family members on their new religion so as to ensure fairness to the family members and to avoid any disputes at a further stage”.
“At the same time, there must be a tranparent process and procedure to ensure that those coverted due to marriage or are of a minor age, be allowed to leave the religion without hindrances."
"The Court also must not allow the unilateral conversion of any minor children resulting from the civil marriage as the Federal Constitution clearly states that it must be done with consent of "ibu bapa". The Court should not view this as a loophole as the religion of the child should remain status quo until he/she attains the age of majority.
"MCA would like to see that the government take immediate steps to make the necessary amendments to the relevant laws in order that the freedom of religion is upheld, and to ensure the legitimate rights of non-Muslims in the country are safeguarded."
DAP SUPPORT
DAP chairman Karpal Singh also welcomed the government's move to introduce new regulations to provide for non-Muslims who wish to embrace Islam.
"This move is necessary to avert any misunderstanding when claims are made to bodies of non-Muslims who have converted to Islam when they die/
"What is more important, and which requires to be addressed immediately, is the necessity of making it easier for non-Muslims who have converted to Islam, to revert to teir original religions, in keeping with freedom of religion if they so desire, as guaranteed under the Federal Constitution.
"As the position stands, non-Muslim converts are required to resort to the Syariah Court to renounce Islam, and are further required to undergo rehabilitation. In my view, no obstacle should be placed in the way of non-Muslim converts who wish to renounce Islam," he added.
Karpal Singh, who is Bukit Gelugor MP, called on the government to relax the requirement for non-Muslim converts to go to the Syariah Court to renounce Islam. There is considerable concern and disquiet among non-Muslim converts who wish to renounce Islam," said Karpal Singh.
IMPORTANT FIRST STEP
The Bar Council, in welcoming the ruling, described the move as "an important first step" as teh rights of an intending convert's immediate family members like the spouse, parents, children or siblings may be affected by the conversion.
Bar president Ambiga Sreenevasan said in a statement today the Islamic religious authorities must be satisfied that the family members have been duly notified.
"They should require documented proof of such a notification. A self-declaratory document from the intending convert will not suffice," she added.
She suggested that consideration be given to the proposal that the responsibility of informing the family can also rest with the Islamic religious authorities.
"Non- converting family members face many other difficult issues that must also be looked into. Laws addressing the consequences of conversions to Islam, particularly in the areas of divorce, custody, guardianship and religion of children, division of assets, inheritance and death, must be urgently considered.
"We urge the government to promptly enact the necessary legislation. Press reports in April 2006 indicated that such legislation was already under discussion then," said Ambiga.
Praise from religious leaders for 'Converts must tell their family' ruling
PETALING JAYA (April 11): The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism has praised the planned introduction of a rule to compel those who wish to convert to Islam to inform their family to prevent problems later.
In announcing this yesterday, Prime Minister Datuk Seri Abdullah Ahmad Badawi had said the absence of such a rulling had resulted in problems like the oft-reported disputes over religious burial rites when the convert dies.
He said those who wanted to convert to Islam must inform their family through a form or letter declaring that their family had been told.
There had been a number of such cases highlighted in the press over the years, some of which had ended up in litigation.
In a press statement issued today, Council president Datuk A. Vaithilingam called the proposal a "positive first step."
"This is a positive first step in ensuring that our laws and system of administration are not abused by those wanting to avoid their obligations to their loved ones by converting to Islam," he said.
He recommended that there should be black-and-white proof of notification from the convert.
He said the council had given comprehensive memoranda to the government, outlining necessary reforms to ensure the law is crystal clear and fair to all parties.
Vaithilingam pledged the support of his council to any government effort to reform problems in religious conversion laws that had plagued the communities the past few years.
WIN-WIN SITUATION
Meanwhile, Bernama reported that the Malaysian Chinese Muslim Association (Macma) Sarawak branch has asked the government to come up with a win-win situation that would not burden those affected by such a proposal.
Supporting such a move, branch chairman Mortadha Lau Abdullah said: "For example, if a married man intends to marry a Muslim woman, what are the long and short-term solutions offered to the spouse who is still a non-Muslim? That we have to look into as the family welfare must be taken into consideration.
"If the government intends to proceed with the proposal, it must not in any way deprive people of their happiness or at the expense of others as Islam abhors such acts."
He said the impact on the social and family institutions must be taken into account while the religious authorities must ensure that there was no room for abuses of the syariah law and rules on conversion and marriages.
Converts must tell their family
PUTRAJAYA (April 10, 2008): Muslim converts will be required by law to inform their families of their decision in order to prevent tussles between religious authorities and families of deceased converts.
Prime Minister Datuk Seri Abdullah Ahmad Badawi said the absence of such a ruling resulted in many problems, like the oft-reported disputes over religious burial rites.
"What we want to do at federal level is to determine a rule for non-Muslims who want to convert to Islam. They should not do it quietly," he said, adding that the convert died and his family was unaware of his conversion, "of course, there would be chaos".
"The problem was not caused by the law but by someone who failed to inform his family members (of his conversion),” he said in the Islamic Development Department today after chairing the 47th meeting of the National Islamic Affairs Council.
Abdullah said sometimes Muslim converts also converted their children as well but they overlooked the rights of their spouses or arrangements made during their civil marriage.
Asked if there will be a law to make them declare their intention, he said: “There must be a ruling ('peraturan'). When someone comes forward and says he wants to convert to Islam, we have to ask him whether his wife knows about it or not."
Asked if the convert will have to bring along his family members, he said: "He has to tell them and he must have a letter to say that his family has been informed."
Updated: 12:57PM Fri, 11 Apr 2008
Sunday, 13 April 2008 09:39pm
Muslims• More time needed to study law on converts
©Bernama (Used by permission)
KUALA LUMPUR, April 13 (Bernama) -- The Allied Coordinating Committee of Islamic NGOs (ACCIN) does not agree to having non-Muslims inform their family before converting to Islam.
Its chairman, Sabariah Abdullah, said such a move would deny them the right to convert and would be seen as forcing them to inform their family when the situation then would still be inappropriate.
"It should be left to the individuals to decide whether to inform their family or otherwise because it would be difficult for the family to accept the fact and would cause problems to the convert as well as his family," she told a press conference.
Sabariah said the major problems the convert would face were rejection by the family members, threats to commit suicide or inflict self-injury and fear of isolation by the family.
ACCIN has 16 member organisations, including the Malaysian Muslim Youth Movement (Abim), the Malaysian Chinese Muslim Association (Macma), the All-Malaysia Indian Converts Welfare and Missionary Association (Al-Hidayah) and the Malaysian Muslim Welfare Organisation (Perkim).
Prime Minister Datuk Seri Abdullah Ahmad Badawi, in announcing the proposed rule, had said it was meant to avoid problems, especially when the converts died and their family disputed the status of the deceased's religion.
Abdullah had said those who wanted to convert to Islam must inform their family through a form or letter declaring that their family had been told. He said the idea behind the rule was to recognise the rights of the affected families, especially the spouses.
Saturday April 12, 2008
KUALA LUMPUR: The Islamic authorities can also help inform the families of those intending to convert to Islam, says the Malaysian Bar Council.
“The Islamic religious authority must be satisfied that family members have been duly notified,” said council president Ambiga Sreenevasan, adding that documented proof of such notification was needed.
“Alternatively, consideration should be given to the proposal that the responsibility of informing the family can also rest with the religious authorities,” she said.
She added that the Government’s proposal requiring those wishing to convert to Islam to inform their families was an important first step towards addressing the rights of an intending convert’s immediate family.
Senior lawyer Sulaiman Abdullah said a considerate and careful approach was needed as there were potential problems related to notification.
“You could make the religious authorities inform the family instead of the would be convert, but there are many non-Muslims who would refuse to accept any mail that comes from the religious department or a request to visit the religious office, on grounds the religious department has nothing to do with them.
The Joint Action Group (JAG) for Gender Equality said informing the family and settling legal matters were the responsibility of the would be convert.
“It is critical that the person intending to convert show proof of informing his family members of his intention, by providing a signature or having sent a letter by way of A.R. Registered post,” said Women’s Aid Organisation executive director Ivy Josiah Josiah, on behalf of JAG.
Josiah said JAG fully supported an individual’s right to profess the religion of his choice but was concerned when the exercise of that right impinged upon the rights of the individual’s family.
She said regardless of a conversion, all issues arising out of the marriage must be settled according to civil law, and not state Islamic law enactments, since the marriage was solemnised or registered under civil law.
By R.S.N. MURALI
KUALA TERENGGANU: It was no April Fools’ joke. The short messaging service (SMS) was real – a man divorced his two wives within three minutes.
In the Lower Syariah Court, businessman Roslan Ngah, 44, divorced both wives by pronouncing talak (intention to divorce) to each of them.
He pronounced talak to his second wife Mastura Ahmad, 35, about 11.50am, then to Norhayati Ismail, 46, before judge Wan Abdul Malik Wan Sidek.
Composed: Norhayati (left) and Mastura at the Lower Syariah Court. They were divorced by their husband Roslan within three minutes of each other. — Bernama Wan Abdul Malik said this was the first time in the court’s history that two wives had sought a divorce at the same time.
Earlier, someone had sent out a message “there is a case in Syariah (court), husband divorces two wives. Star pls come now.”
Four reporters here who received the SMS brushed it off as a prank.
This reporter had replied “ha, ha, ha, thanks.”
An hour later another SMS came: “Yhis is not a joke, pls come to court now.”
The reporters gave it a shot and headed to the court. They made it in time to listen to the proceedings.
Norhayati, a homemaker, has four children (aged nine to 22) with Roslan after marrying in 1986.
Mastura, a nurse at the Sultanah Nur Zahirah Hospital, has two, aged six and 10, following their marriage in 1995.
Both women looked composed during the proceedings. Accompanying Norhayati was her eldest daughter, Nurfarhana, 19.
The divorces were made under Section 44 of the Terengganu Syariah Enactment.
Outside the court, Roslan said he felt sad to be separated from his wives whom he claimed had asked him for the divorce.
He said both women shared “a very close relationship” and lived in a house in Pasir Panjang here. He stays in another house a few metres away.
“They are like good friends but I never imagined that both of them had collectively decided to divorce me.
“I admit that my relationship with them had been strained over the past few months but I never expected our marriages to end in this manner,” he said in a calm voice.
Roslan confessed that he was also married to another woman in 2001 and they were blessed with a baby girl but they separated in 2004.
When asked whether he would remarry, Roslan replied: “If my fate says so, I have no qualms and this time I hope that my marriage will last forever.”
One of the primary tasks of law is to recognise and peacefully reconcile conflicting interests in society
Wednesday January 9, 2008
REFLECTING ON THE LAW
BY SHAD SALEEM FARUQI
BY FAR and large Malaysia’s plural legal system has, with admirable success, walked the middle path between private weal and public interest, and between the competing demands of various ethnic, religious, linguistic and regional associations that constitute the majestic network of our society.
But in the last decade and a half, a number of deeply divisive and unresolved issues have come to the fore, among them the issue of religious conversion of children and the conflicting jurisdiction between the syariah and civil courts.
In the recent case of Subashini v Saravan these issues again came to the fore. The husband in a non-Muslim marriage renounced his religion to become a Muslim. He converted his four-year old boy to Islam without the knowledge and consent of his spouse.
He sought the Syariah Court’s help to dissolve his non-Muslim marriage and to obtain custody and/or guardianship over his infant children.
The non-converting spouse unsuccessfully sought the High Court’s and Court of Appeal’s help to dissolve her marriage, to restrain the conversion of her two-year old child and to get both children back to her care.
On Dec 27 last year, in a landmark judgment the Federal Court ruled on the issue of child conversion and on the engaging issue of which court has jurisdiction in a matrimonial dispute involving a couple one of whom has converted to Islam. The apex court’s majority 2-1 judgment contains much that will give solace to non-Muslims but there are also rulings that will cause despair.
Jurisdiction
The majority ruled that questions of jurisdiction are for the civil courts to determine. The High Court has jurisdiction even if the husband has converted to Islam and even if he had commenced proceedings in the Syariah Courts: Tan Sung Mooi v Too Miew Kim (1994).
The status of the parties at the time of the non-Muslim marriage is the material consideration for purpose of jurisdiction.
A Syariah Court order relating to a civil marriage has no legal effect in the High Court other than as evidence of Islamic law. The converting husband whose civil marriage is still subsisting is subject to the jurisdiction to the High Court, but the Syariah Court has no authority over the Hindu wife.
Non-Muslim marriage
A non-Muslim marriage does not automatically dissolve upon one party’s conversion to Islam. It remains valid till dissolved by the High Court under civil law. Provisions of Islamic Law apply only to those marriages where both parties are Muslims. A converting spouse cannot shield himself behind freedom of religion in Article 11(1) to avoid prior obligations under the 1976 civil law. By contracting a civil marriage the couple is bound by the 1976 Act in respect of divorce and custody.
Despite the above exhilarating opinions, the Federal Court majority failed to resolve decisively the issue of jurisdiction. Datuk Nik Hashim Nik Ab. Rahman, FCJ for the majority held that both civil and syariah courts have concurrent jurisdiction over the matter.
Sadly, this paves the way for conflicting custody and guardianship orders from the civil and syariah courts, possible complaints of contempt of court for non-obedience of judicial commands, and continuing gladiatorial battles in the courts.
The dissenting judge Datuk Abdul Aziz Mohamad must have foreseen all this. He ruled wisely that as the marriage at its inception was a non-Muslim marriage, the High Court has exclusive jurisdiction.
The majority also ruled that it is not an abuse of the process of the courts for a spouse in a “Law Reform marriage” to move the Syariah Court. The majority gave to the husband the unilateral right to convert the religion of his minor child to Islam and refused an injunction against him. The dissenting judge, with courage and compassion, broke ranks with the majority on all these issues.
The judgment also revealed a disturbing unequal legal position in the matter of one’s right to go to the courts to seek redress. The non-converting spouse could only move the High Court for divorce only after three months of her husband’s conversion.
But the converting husband could get going in the Syariah Court right away and have a head-start in matters of obtaining judgments over issues of custody, guardianship, property and maintenance. This state of affairs is hardly going to arouse confidence in non-Muslim minds. It is for this reason, perhaps, that the learned dissenting judge asked for the status quo to be preserved till the civil court determined the issues authoritatively.
Conversion of a child
Article 12(4) of the Constitution provides that for the purpose of instruction in or taking part in a ceremony or act of worship, “the religion of a person under the age of 18 years shall be decided by his parent or guardian”.
All three judges ruled that the word ‘parent’ in Article 12(4) of the Constitution is in the singular and refers to one parent only.
A converted partner could unilaterally and without the consent of the other spouse change the religion of his children to Islam. The other parent cannot prevent the conversion: Nedunchelian v Norshafiqah (2005). However, one judge, Datuk Abdul Aziz Mohamad, FCJ ruled that the non-converting spouse is entitled to a hearing and to object to the conversion.
With all due respect to the apex court, its decision on this point is flawed in law. The term 'parent' in Article 12(4) is indeed in the singular but it is clarified in the Eleventh Schedule in section 2(95) that “words in the singular include the plural?”
The Constitution intended to give both parents equal rights to determine their children’s religion. The learned judges overlooked or were not alerted to this provision in the Eleventh Schedule.
From the point of view of justice and constitutionalism what was required was a ruling on two points. First, that both parents have equal rights. Second, a creative interpretation was needed to cover situations when the parents do not see eye to eye on their child’s religion.
As the glittering generalities of the Constitution fail to provide any guide, it is submitted that in such a situation, as a matter of practicality, the parent to whom custody is granted by the court of competent jurisdiction should have the right to choose a child’s religion till he reaches the age of 18.
The open-ended court ruling in the Subashini case could result in continuing court battles if each parent uses his right to convert and re-convert a bewildered child.
The Subashini decision, therefore, leaves much to be desired. A legislative initiative is needed to restore the spirit of tolerance, compassion and moderation that animated our Merdeka Constitution.
The judiciary, with honourable exceptions, fails to arouse confidence. The Government and Parliament must step in to restore the balance of things and to chisel out the necessary solutions and compromises.
Dr Shad Saleem Faruqi is Professor of Law at UiTM.
Soon Li Tsin | Dec 27, 07 12:24pm
The Federal Court today ruled that the syariah courts cannot dissolve a civil marriage and all dissolutions made in the religious court is only effective and applicable within the confines of Islamic law.
“The non-Muslim marriage between the husband and wife remains intact and continues to subsist until the High Court dissolves it pursuant to a divorce petition by the unconverted spouse...,” justice Nik Hashim Nik Ab Rahman, who headed a three-judge bench, told the court.
This is a minor victory for company secretary R Subashini as her marriage with Islam-convert husband T Saravanan was a civil marriage and she could clearly now go to the civil courts to seek remedies.
Subashini, 28, a Hindu, is trying to stop her husband, who has converted to Islam and assumed the name Muhammad Shafi Saravanan Abdullah, from taking divorce and custody proceedings to the Syariah Court.Saravanan, a businessman, converted in May 2006 along with their eldest son, Dharvin Joshua, 4. He then launched proceedings in the Islamic court for divorce as well as the custody of their second son, Sharvin, 2.
The Federal Court, in a 145-page judgment, said that the husband can still dissolve the marriage under syariah law but it will have no effect in the civil courts.
It added that Saravanan can seek remedies in the syariah courts but it cannot compel Subashini to do the same because she is a non-Muslim.
However, Federal Court did not make clear the issue concerning the custody of the two children as it also ruled today that both the husband and wife can initiate custody proceedings in their respective jurisdictions.
The country’s highest court also held that Saravanan did not abuse the law by converting his four-year-old son to Islam without the knowledge of the mother.
It said that according to the Article 12(4) Federal Constitution, only the consent of one parent is sufficient in the conversion of a child.
"Either husband or wife has the right to convert a child of the marriage to Islam," said Nik Hashim.
"The argument that both parents are vested with equal right to choose is misplaced. Hence the conversion of the elder son to Islam by the husband .... did not violate the Federal Constitution."
The court also ruled that it was within the right of Saravanan as a Muslim to file the divorce proceedings in the Syariah Court.
But Subashini case thrown out
Nevertheless, the Federal Court three-member panel today threw out Subashini case on a legal technicality - that her divorce petition was “premature and invalid”.
In a 2-1 decision, the court said that Subashini’s divorce petition was prematurely filed under the Law Reform (Marriage and Divorce) Act 1976 (LRA).
According to the act, the wife can only file for divorce three months after the date of her husband T Saravanan’s conversion to Islam, as stipulated under Islamic law.
However, Subashini’s divorce petition was filed about two weeks before the three months expiration date. The divorce petition is deemed null and void.
Nevertheless, Subashini can apply for a fresh petition.
In today’s landmark decision, justice Azmel Ma'amor agreed with Nik Hashim while justice Abdul Aziz Mohamad was the lone dissenting voice.
The judges, however, were unanimous that Subashini has no recourse for justice in the syariah courts because she is a non-Muslim.
This overrules the decision made by the Court of Appeal on March 13 when justices Suriyadi Halim Omar and Hassan Lah - who made the majority 2-1 decision - told her to take her case before the Syariah Court, while justice Gopal Sri Ram dissented.
According to the appellate court's majority decision, the injunction sought by Subashini was unsustainable because the Syariah Court is competent enough decide on the matter.
The country's civil courts operate parallel to syariah courts for Muslims in areas of personal law, including divorce and child custody.
Non-Muslim spouses say they fear they will not get an equal hearing if their cases are referred to the Islamic court. Subashini's case is one of a series of legal battles between Muslims and non-Muslims.
Husband, wife not in court
Both the husband and wife did not appear in court today.
Asked how Subashini is coping, lawyer K Shanmuga said she has not seen Dharvin, who has been living with her estranged husband, since his conversion.
“She is also extremely worried about her younger son, Sharvin, because he can be converted at any point in time without her knowledge based on today’s decision,” he said.
Shanmuga described the court decision as a "blow" to his client.
"The decision ... causes great uncertainty about her children and what would become of their religion and custody rights," he said.
Subashini failed to get an injunction to stop her husband from seeking a divorce in the Syariah Court and prevent him from converting their children.
The lawyer said Subashini was not challenging the divorce but wanted it to be decided in a civil court.
Shanmuga urged the government to hasten legal reforms to allow parents to have equal say in such matters.
"This requires urgent legislative reforms to ensure both parents have an equal say in determining a child's religion and to prevent one party from going to a syariah court in respect to any matter dealing with a non-Muslim marriage," he said.
Another lawyer involved in the case said the decision could force Subashini to flee with her younger son for fear her husband may try to convert him.
"From the court decision, it appears that the Muslim husband can now proceed to convert the other son to Islam," he told AFP on condition on anonymity.
Sep 24, 07 6:45pm
The decision of where jurisdiction is vested should be based in the enacted law from which the matter arises, lawyer Malik Imtiaz Sarwar told the Federal Court today as it wrapped up its hearing on the R Subashini case.
Representing secretary Subashini, Malik told the three-member Bench led by Justice Nik Hashim Nik Abdul Rahman that recent case law held that courts have to consider the relevant legislative provision said to vest jurisdiction in the respective courts.
“Jurisdiction is vested in the High Court and syariah court by enacted law. The marriage between Subashini and her husband was made under civil law, Law Reform (Marriage and Divorce) Act 1976,” he said.
“The court must follow this decision unless it can be established that the decision (in those case law) is wrong, uncertain, unjust, outmoded or obsolete.”
Subashini, 28, a Hindu, is trying to stop her 31-year-old husband T Saravanan - who now goes by the name of Muhammad Shafi Saravanan Abdullah - from taking matrimonial proceedings to the Syariah Court.
Her battle began when her husband converted to Islam in May 2006 and converted their eldest son, Dharvin Joshua, 4, as well.
The husband then launched proceedings in the Syariah Court for divorce and custody of their second son, Sharvin, 2. He is represented by Mohamed Haniff Khatri Abdullah.
Malik also rebutted Haniff’s earlier argument that Section 51 of the Law Reform (Marriage and Divorce) Act 1976 (LRA), which governs civil marriages, was unjust and unconstitutional.
The provision states that only a non-Muslim spouse can become the petitioner in a divorce petition and applicant in the civil court, while the Muslim spouse is compelled to remain as a respondent.
“Section 51 was drafted to protect women and children against (the actions of) Muslim converts. The husband cannot shield himself from responsibility under LRA by shielding himself behind Article 121(1A).
“Conversions such as his (Muhammad Shafi’s) could undermine the legislative scheme put in place for all the parties including the children.”
Article 121(1A) states that the civil court has no jurisdiction on matters under the purview of the Syariah Court.
Parent’s right
On the issue of Dharvin’s conversion, Malik noted that Article 160 read with the 11th schedule of the Federal Constitution provides that words in the singular also includes the plural and vice-versa.
Muhammad Shafi has contended that he had a right to convert his child because Article 12(4) states the right of a ‘parent’ to determine the religion of a child.
“Article 12(4) entrenches the right to choice of religion of both parents. This is consistent with guarantee of gender equality in Article 8(2),” he said.
After he concluded his submission, Malik was quizzed by judge Azmel Ma’amor about the position of Islamic law in the country and whether remedy is afforded for Muslim converts in civil law.
Malik explained that, for religious law and rulings to have an enforceable effect on an individual, it must first be codified. Any law that is not codified is not recognised by the courts and is therefore not enforceable.
The other judge presiding over the case is Abdul Aziz Mohamad.
The Bench reserved judgment, saying it would require more time to go through the written submissions on the appeals concerning the divorce and custody dispute.
“There are too many points in law to be considered. We will need more time to look at it, the decision will be on date to be fixed,” Nik Hashim said.
WEB EDITION :: Local News
R. Surenthira Kumar
PUTRAJAYA (Sept 24, 2007): A husband cannot claim he no longer comes under the purview of civil laws after his conversion to Islam, argued the lawyer representing R. Subashini in the Federal Court today.
Malik Imtiaz Sarwar told the panel of three judges that by making such a claim, a convert could leave the other party in a civil marriage in the doldrums by seeking recourse in another court to resolve the dispute between them.
He added that the argument that the syariah court had the power to legislate to dissolve marriages under the Law Reform (Marriage and Divorce) Act 1976 (LRA) was unreasonable because it extended the syariah court’s jurisdiction.
Malik Imtiaz said the implications from such an argument were unreasonable because it would:
- appear that the syariah court could embrace non-Muslims,
- allow for the converting spouse to ignore his or her obligations under the LRA at a time when the party concerned was a non-Muslim,
- leave the non-Muslim spouse with no meaningful and just recourse, and further run counter to the guarantee of equal protection under Article 8 of the Federal Constitution.
He added that the power to legislate must be harmonised with this fundamental liberty, if not, the liberty would be rendered illusory.
Malik Imtiaz was submitting his reply in the legal tussle between Subashini, 29, a Hindu, and her Muslim convert husband, T. Saravanan, 31, over the dissolution of their civil marriage, conversion of their second child, and custody over their two sons.
Saravanan, now known as Muhamad Shafi Saravanan Abdullah, had earlier converted the couple’s eldest child without his wife’s consent.
On March 13, Subashini was told by the Court of Appeal in a majority decision with Justice Gopal Sri Ram dissenting, that she could not stop Saravanan from dissolving their marriage, seeking custody of their children and unilaterally converting their children to Islam.
She was also told that she could instead seek recourse through the Syariah Appeal Court.
In appealing the Court of Appeal’s decision yesterday, Malik Imtiaz said the syariah court’s jurisdiction was circumscribed by the requirement that it be over persons professing Islam, and hence the syariah court can only enforce laws when all parties before it profess the religion.
Malik Imitiaz also rebutted Saravanan’s argument that his wife’s divorce petition was premature as she had ignored the Islamic imposition of waiting for three menstrual cycles to lapse first.
Malik Imtiaz said Saravanan himself had filed for divorce in the syariah court a day after his official conversion, and before the three month cycle had lapsed.
He also said the statement that Islam was the "religion of the Federation" as stipulated in Article 3(1) of the Federal Constitution was only meant for rituals and ceremonies, and was never intended for Islamic law to operate beyond the expressed confines of the constitution, in particular against persons who do not profess Islam.
Malik Imtiaz said if the arguments of Saravanan’s lawyer were accepted, this would mean that the state was allowed to legislate Islamic law to be applied on non-Muslims.
This, he added, was totally contrary to the Federal Constitution’s careful scheme to protect the religious rights of all Malaysians, in particular non-Muslims.
Malik Imtiaz said Saravanan’s religious freedom was not being violated because the key consideration in the case were the antecedent rights that were contracted under the LRA when both husband and wife were non-Muslims.
Judges Datuk Nik Hashim Nik Abd Rahman, Datuk Abdul Aziz Mohamad and Datuk Azmel Maamor said they needed time to consider the submissions from both parties. A decision would be delivered on a date to be fixed later.
Updated: 07:51PM Mon, 24 Sep 2007
NST Online » Local News
2007/09/25
PUTRAJAYA: The syariah court has no jurisdiction to dissolve civil marriages, a lawyer told the Federal Court.
Counsel Malik Imtiaz Sarwar said such a marriage must be annulled in the High Court even if one of the spouses had converted to Islam.
"The jurisdiction of the syariah court is confined to Muslim marriages only," said Malik, counsel for secretary R. Subashini, who is appealing against the decision of the Court of Appeal, which ordered her to go to the syariah court to fight for her matrimonial and custodial rights of her children .
Judge Datuk Nik Hashim Nik Abdul Rahman, Datuk Ab-dul Aziz Mohamad and Datuk Azmel Maamor are hearing the appeal.
Subashini, 28, has been embroiled for more than a year in a legal tussle with businessman T. Saravanan, whose Muslim name is Muhammad Shafi Abdullah.
The couple was married in 2001 and registered their union under the Law Reform (Marriage and Divorce) Act 1976.
They have two sons, Dharvin Joshua, 4, and Sharvind, 1.
On May 19 last year, Shafi, 31, embraced Islam and converted Dharvin.
He then filed an application at the Kuala Lumpur Syariah Court to dissolve his marriage and obtain custody of the children.
Upon hearing Shafi's pending application at the syariah court, Subashini filed a petition at the Kuala Lumpur High Court on Aug 7 to dissolve their marriage and to obtain custody of the children and maintenance.
The matter became complicated because Shafi had gone to the syariah court while Subashini had gone to the civil court.
Nation
Monday September 24, 2007
MYT 7:31:18 PM
By RAPHAEL WONG
PUTRAJAYA: The Federal Court has reserved judgment in the appeal of a woman who is trying to prevent her Muslim-convert husband from dissolving their marriage in the Syariah Court and converting their second son.
Federal Court Justices Nik Hashim Nik Ab Rahman, Abdul Aziz Mohamad and Azmel Ma’amor said they needed time to consider all points raised by Malik Imtiaz Sarwar and Mohd Haniff Khatri Abdulla, counsel for R. Subashini and T. Saravanan, respectively.
“The time required is necessary for us to come to a correct decision,” said Justice Nik Hashim on Monday.
In September last year, the Kuala Lumpur High Court dismissed Subashini’s application to stop Saravanan from resolving their marital problems in the Syariah Court.
On March 13, Court of Appeal judges Suriyadi Halim Omar, Hassan Lah and Gopal Sri Ram had, in a 2-1 majority judgment, ordered Subashini to take her divorce and custody claims to the Syariah Court.
Two weeks later, the same panel in a majority judgment, granted an injunction preventing Saravanan from initiating or continuing with any proceedings in the syariah courts or converting their younger son.
Subashini, 28, and Saravanan, 31, have yet to finalise their divorce. They have two children – Dharvin Joshua, four, and one-year-old Sharvin.
Saravanan claimed the elder child converted to Islam with him last May.
At the outset, Malik said the contention that Subashini could submit to the Syariah Court’s jurisdiction was unacceptable as the Federal Constitution limited the provisions of syariah law to Muslims only.
Therefore, Subashini could only submit to the provisions of civil law, he said.
Doing a comparison, Malik said the Federal Constitution was the supreme law of the land unlike the Federal Constitution in Pakistan where its supreme law was syariah law.
“Since our Federal Constitution states it is the supreme law of the land, it only provides one mechanism for the creation of law, the Dewan Rakyat and state assembly,” he said.
Malik also said that this was the reason why there was an administration of law enactment in every state relating to syariah matters.
“There is Islamic law which is guided by the muftis and fatwa council of the respective states but until it is enacted, it is not an enforceable law,” he said.
Azrul Mohd Khalib
Sep 24, 07 1:18pm
I must say that I don't agree with the premise that the recent Penal Code amendment has actually made it possible to punish with jail terms and strokes of the ‘rotan’ for husbands who rape their wives.
Based on media reports and what I've read thus far regarding this development, it appears that the Penal Code amendment merely recognises that a man may use physical and violent force in compelling his wife to have sexual intercourse.
It does not necessarily recognise and criminalise marital rape as such whereupon it is possible for a wife to not consent to having sex but is later forced by her husband into doing so. It does not appear to anticipate that physical intimidation could be uttered but not carried out or that threats of 'talak' (divorce) and accusations of 'nusyuz' (disobedient or traitorous wife) could be used to ensure compliance.
Rape is forced sex regardless of whether it occurs within marriage or without. The use of physical violence is a separate issue and is punishable under existing law. Marital rape should be recognised clearly and definitively as such.
Laws which punish the use of physical violence and assault should be enforced in any circumstance whether one is married or not. Marital rape needs to be clearly defined, recognised and criminalised both under the Penal Code and syariah law.
21 September, 2007
KUALA LUMPUR: The recent amendments on marital rape to the Penal Code have met with a mixed reaction. The Bar Council supports the move, but the response from Women’s Aid Organisation was lukewarm. Effective last Friday, rape under the the Penal Code includes husbands who use violence to force sex on their wives. The penalties are up to 20 years’ jail and whipping.
Bar Council president Ambiga Sreenevasan said the Bar Council disapproves all forms of whipping but welcomes the government’s move.
"The provision is a step towards recognising marital rape as an offence and the Bar Council supports it. But like all rape cases the burden of proof would be the victim’s and they would have to show that they were assaulted by physical signs of struggle and injury.
"It’s easy to dismiss marital rape in court because it’s a case of his word against hers, and it normally crops up in divorce cases. But this shouldn’t deter our legislative system from dealing with the fact that rape occurs in marriage too," she said.
But Women’s Aid Organisation is less convinced. For the past 25 years, the non-governmental organisation has been supporting victims of domestic violence, setting up the first shelter for battered women in the country, and along with other women’s groups has played a role in the advocacy for legal protection against gender-based violence.
Programme officer Chin Oy Sim said the amendment to the Penal Code is a small, limited step forward. It should also be considered marital rape if the husband uses threats to force his wife to submit, for example, threatening to divorce her or take her children away. Or telling her he will go to a prostitute.
"Should husbands only be charged with rape if they use violence to force sex on their wives? The current amendment is a compromise, and there is no political will to criminalise marital rape itself, minus the physical threats or violence," she said.
Chin said this is reflected in the fact that no minimum jail sentence had been imposed.
"Does this mean a marital rape offender can get away with a one or two-week sentence? More needs to be done to criminalise marital rape. If a woman does not freely consent to sex, it is rape."
NST Online » Local News
2007/09/19
PUTRAJAYA: The High Court should grant a Hindu wife an injunction to restrain her Muslim husband from dissolving their civil marriage in the Syariah Court, said a lawyer.
It should also provide her custody of their children.
Counsel Malik Imtiaz Sarwar, who is appearing for R. Subashini, said this was because a provision in the Law Reform Act (Marriage and Divorce), 1976 vested such authority in the High Court.
Malik said: "By contracting a civil marriage, both parties had agreed to be bound by provisions of the Law Reform Act in respect to divorce and custody."
He said the Administration of Islamic Law (Federal Territories) Act 1993 stated that the Syariah Court only had jurisdiction over persons who professed Islam.
"The wife is not such a person and the Syariah Court cannot adjudicate over a marriage contracted under the Law Reform Act," he said in his submission before the Federal Court.
He was appealing against the decision of the Court of Appeal that had ordered Subashini to seek relief in the syariah court in her fight for her matrimonial rights and custodial rights of her children.
Judges Datuk Nik Hashim Nik Abdul Rahman, Datuk Abdul Aziz Mohamad and Datuk Azmel Maamor are hearing the appeal.
Malik said Subashini's husband, T. Saravanan, whose Muslim name is Muhammad Shafi Abdullah, had also abused the court process by seeking remedy in the Syariah Court.
He said Article 121 (1A) of the Federal Constitution on the question of whether the High Court or Syariah Court had jurisdiction did not apply to the facts of the appeal.
Malik said it should be emphasised that the injunction sought was against the husband and not the Syariah Court.
He said the husband had no right to convert either child to Islam without the consent of his wife.
"The choice of religion is a right vested in both parents as provided under the Constitution and the Guardianship of Infants Act 1961."
Malik said Subashini, a secretary, had provided evidence that the husband had abused the judicial process by going to the Syariah Court.
"She is asking to be given an opportunity to be fairly adjudged by the High Court to which she has access."
Subashini, 28, has been embroiled for more than a year in a legal tussle with Shafi, 31, a businessman, whom she married in 2001.
They have two sons, Dhar-vin Joshua, 4, and Sharvin, 1,
On May 19 last year, Shafi embraced Islam and converted Dharvin.
He then filed an application at the Kuala Lumpur Syariah Court to dissolve their civil marriage and obtain custody of the children.
Upon hearing of Shafi's pending application at the Syariah Court, Subashini filed a divorce petition at the Kuala Lumpur High Court on Aug 7 to dissolve their marriage and obtain custody of the children and maintenance.
The matter became complicated as Shafi had gone to the Syariah Court while Subashini had gone to the civil court to plead her case.
To make sure that her petition was not rendered academic, Subashini filed an injunction to stop Shafi from obtaining relief at the Syariah Court.
In September last year, the High Court dismissed Subashini's application to stop Shafi from resolving their marital problems in the Syariah Court.
The Court of Appeal, in a majority judgment, upheld the decision of the High Court that the injunction sought by Subashini was unconstitutional as it would have prevented the Syariah Court from carrying out its duties.
On May 16, she was granted leave by the Federal Court to appeal against the decision of the Court of Appeal.
Hearing continues.
NST Online » Local News
2007/09/14
By : V. Anbalagan
KUALA LUMPUR: Beating one’s wife into having sex can now land a man in serious trouble.
The punishment is a jail sentence of up to 20 years and whipping. This penalty is provided in an amendment on rape in the Penal Code which came into effect last Friday.
An example would be when the husband refuses to take "no" for an answer and then proceeds to slap or punch his wife into submission.
The amendment has classified rape and aggravated rape and each category carries different penalties.
Aggravated rape will include having sex with a girl aged below 12 and those found guilty could be sentenced up to 30 years and whipped.
The definition of rape has also been extended to cover the sexual exploitation of women by people in authority as in the case of a medicine man taking advantage of women seeking treatment.
Snatch theft has been reclassified as robbery and the perpetrator now faces up to 14 years in jail.
The maximum sentence for this offence was seven years in prison.
In July last year, parliament passed amendments to the Penal Code and Criminal Procedure Code (CPC) after a parliamentary select committee obtained feedback from the public and after visiting several Commonwealth countries to study their laws.
Changes to the CPC provide better rights for arrested persons. They include:
• Informing detainees of the grounds for their arrest as soon as possible and allowing them to inform their family and their lawyers.
• That the remand period be broken into two stages and categories:
In the investigation of an offence punishable with imprisonment of less than 14 years, a magistrate may issue a remand order of not more than four days on the first application and not more than three days on the second.
For an offence that is punishable with the death penalty or imprisonment of more than 14 years, a magistrate can grant up to seven days’ remand on the first application, followed by a maximum of seven more days on the second.
An accused person has automatic right to obtain favourable documents like first information report and the cautioned statement to prepare his defence.
There are now clear provisions on how a search should be conducted on suspects in order to safeguard their dignity.
The four types of body searches allowed are pat down search, strip search, intimate search and intrusive search. The controversial "nude squat" is banned.
Lawyer and lecturer Baljit Singh Sidhu said the amendment on remand prisoners was an excellent development.
"Before, there were repeated allegations of these prisoners being abused while under police custody."
He said punishment for offences such as rape and snatch theft had been enhanced but the provision for rehabilitation outside prison had been overlooked.
"It is left to be seen whether a longer custodial sentence will bring down such crime," he said.
home news
06/01/2003
KUALA LUMPUR Jan 6 - The move by the Perlis state goverment to relax the conditions for polygamy is to ensure that the children born will be given appropriate protection, said Menteri Besar Datuk Seri Shahidan Kassim.
He said it was not meant to promote polygamy but to avoid problems to register the children when such marriage was solemnised in Thailand.
"Many children cannot be registered because the husband is afraid to register his marriage in Malaysia for fear of angering his wife, and the problem crops up when the man dies and his children cannot acquire Malaysian citizenship," he told reporters after meeting Women and Family Development Minister Datuk Seri Shahrizat Abdul Jalil here today.
Shahidan was accompanied by Perlis Mufti Datuk Alim Panglima Mat Jahaya Hussin and three state ulama in the meeting to discuss the polygamy issue.
Shahidan said it was not a new law but had been in existence for sometime.
"This is not to publicise it. When we started the campaign `Utamakan Keluarga: Semakin Hari Semakin Sayang', we discovered that the children were not registered because the marriage took place in Thailand," he said.
As such, he said it would be better to allow such marriage to be registered in Malaysia but subject to conditions in this country.
"If they marry here, at least we can do some background checking. If in Thailand, we have no way of knowing the background of the man," he said.
He said this move would be better than allowing a couple to marry outside the country and then registering their marriage in the country after paying fines.
"We want to show that the law in Malaysia is the best. If they go to Thailand to get married, it means that he thinks the law in Thailand is the best," he said.
Shahidan also suggested to Shahrizat to raise the problem of different Islamic family laws between one state and another to the Conference of Rulers.
"This is the cause of injustice to women, one state like this another state like that," he said.
The issue on the need to standardise the Islamic family law cropped up when some people viewed marriages in a certain state as not valid.
home news
7/11/2001
KANGAR Nov 6 - The number of polygamy cases in Perlis, the highest in the country, indicates that most men in the state do not suffer from erectile dysfunction (ED), Menteri Besar Datuk Seri Shahidan Kassim said today.
He said a Kuala Lumpur Hospital (HKL) statement claiming that Perlis recorded the highest number of ED cases in the country was confusing as the polygamy rate in the state was also high.
"Definitely those with ED cannot commit themselves to polygamy," he told Bernama over the telephone from Kuala Lumpur.
Asked on the number of Perlis men practising polygamy, Shahidan said he did not have the exact statistics but maintained that the number was high.
In 1997, IKIM or the Institute of Islamic Understanding Malaysia reported that all applications for polygamy received from men in Perlis during the four years since 1993 were approved.
Shahidan expressed shock over the HKL report that 70 percent of the 743 men interviewed in a study on ED in Perlis admitted to suffering from the problem.
In Kangar yesterday Shahidan urged the Health Ministry to conduct a more comprehensive study to get the real picture of the ED problem in Perlis.
He said if there was basis to the HKL claim, the ED syndrome among Perlis' men was bound to cause marital problems among couples in the state.
Shahidan urged ED sufferers in the state to seek treatment, including herbal cure from the various types of herbs available in the Perlis Herbal Park.
front page
05/01/2003
KUCHING Jan 4 - Relaxing the conditions for polygamy can create social problems which can jeopardise the family institution in the country, said Deputy Minister of National Unity and Social Development Dr Tiki Lafe.
He said wives and children could become victims because some husbands who planned to practise polygamy found it difficult to be fair to those concerned.
"Among the problems that may arise following the relaxation in conditions for polygamy are a higher divorce rate, husbands abusing the relaxed conditions and children being easily influenced into indulging in unhealthy activities due to lack of attention from their fathers who have more than one wife," he told reporters after a gathering in conjunction with Aidilfitri, Christmas and the New Year organised by the Taman Lee Ling Rukun Tetangga, here Saturday.
Commenting on the move by the Perlis state government to relax conditions for polygamy without permission from the first wife, Dr Tiki hoped Perlis would carry out a study from all angles including getting the views of women before implementing it.
Asked whether the Perlis government should defer implementation of the new conditions following protests from various parties, he said it was up to the discretion of the state government.
Dr Tiki hoped the problem caused by relaxing the conditions for polygamy could be resolved immediately in a way that satisfied all parties and without others becoming victims of the move.
Since the announcement by the Perlis state government on the relaxed ruling for polygamy, only the Puteri UMNO head Azalina Othman Said had expressed support and suggested making it mandatory for husbands intending to marry again to undergo a course on polygamy.
Azalina said the move by the Perlis government could prevent marriages being solemnised in southern Thailand which had caused problems to the wives and children concerned.
Women and Family Development Minister Datuk Seri Shahrizat Abdul Jalil and several non-governmental organisations (NGOs) described the move to enable husbands to indulge in polygamy without permission of the first wife as a humiliation to women.
Meanwhile, in KANGAR, Perlis Menteri Besar Datuk Seri Shahidan Kassim said the move was to protect the interest of women whose husbands practised polygamy.
He said marriages solemnised secretly outside the country would have adverse effects on women especially when they would not get any rights.
bicara agama
Oleh ZAMRI MOHAMMAD
28/05/2003
KISAH ini berlaku beberapa bulan yang lalu ketika sahabat penulis dan sepupunya dalam perjalanan pulang ke kampung halaman dengan menggunakan perkhidmatan bas ekspres.
Sepanjang perjalanan tersebut, sepupunya, lepasan sekolah di tingkatan lima MRSM berkesempatan berkenalan dengan seorang warga British yang mengambil peluang bercuti di Malaysia.
Sambil bertukar-tukar bicara, pelancong berkenaan mengutarakan satu persoalan yang cukup menarik untuk kita bincangkan dan fikirkan.
Beliau bertanya, Islam membenarkan penganutnya mengahwini wanita secara berpoligami tanpa melebihi empat pasangan. Mengapa wanita tidak boleh mengamalkan perkahwinan melebihi seorang suami, sedangkan mereka mempunyai hak dan keadilan yang sama rata dengan lelaki?
Perkahwinan wanita dengan pasangannya melebihi seorang lelaki, secara ringkasnya poliandri tidak mempunyai tempat di dalam ajaran Islam.
Malah poliandri telah menjadi praktis kehidupan masyarakat yang kurang rasional dan bertentangan dengan fitrah.
Kajian yang dilakukan oleh Anna Urbanska dari Institut Arkeologi dan Ethnologi Polish, Poland sekitar tahun 1998 dan 1999, mendapati amalan poliandri masih diamalkan oleh mereka yang mendiami dataran Tibet yang berumur sekitar 22 hingga 38 tahun.
Malah amalan ini turut diamalkan oleh puak-puak yang mendiami Himalaya,di antaranya puak Sherpa, Bhutia dan Lepcha yang kebanyakannya mengamalkan poliandri.
Bagi puak seperti Khasa, Toda dan Nayar, poliandri diamalkan di kalangan adik beradik lelaki sekurang-kurangnya dua orang (Ensiklopedia Britanicca, jilid 14 halaman 190).
Menariknya untuk diketengahkan, berdasarkan kajian yang sama juga, puak-puak ini mula menukar corak hidup mereka dan meninggalkan amalan poliandri yang pernah menjadi budaya dan cara hidup puak-puak tersebut.
Apakah faktor-faktor yang membawa kepada pengharaman amalan poliandri dalam ajaran Islam?
Sheikh `Attiya Saqr, bekas ketua Jawatankuasa Fatwa Al Azhar memberi respon berkenaan isu ini.
Keadaan biologi wanita tidak memungkinkan wanita mampu mengamalkan sistem perkahwinan ini. Ini dapat dilihat dengan kitaran haid yang perlu dijalani oleh wanita setiap bulan yang mempengaruhi emosinya.
Ini akan menghadkan tanggungjawabnya apatah lagi dalam memenuhi keperluan pasangan-pasangannya.
Tambahan lagi, sekiranya Islam menghalalkan pengamalan sistem perkahwinan sebegini, ia disifatkan sebagai meletakkan wanita di tahap yang paling rendah, iaitu menjadikan mereka sebagai objek memenuhi tuntutan nafsu.
Allah telah meletakkan keadilan dan persamaan antara wanita dan lelaki tetapi dengan tanggungjawab dan keupayaan yang berbeza.
Secara psikologi dan fisiologi, wanita dan lelaki adalah berbeza. Andainya seorang lelaki mengahwini wanita secara poligami, ayah dan ibu kepada anak yang dilahirkan dapat diidentiti dan dikenali dengan mudah.
Berbeza dengan pengamalan poliandri, hanya ibu kepada anak yang bakal dilahirkan boleh dikenal pasti, bagaimana pula dengan ayahnya? Islam meletakkan kepentingan dalam mengenal pasti keturunan, yakni ibu dan ayah kepada anak yang dikandung.
Ahli psikologi mengatakan kanak-kanak yang mengalami kesukaran untuk mengenal pasti identiti ibu dan ayahnya akan mengalami kemurungan serta ketidak seimbangan emosi.
Lebih malang lagi sekiranya kanak-kanak ini dimasukkan ke alam persekolahan, mungkin ibunya terpaksa memberikan sekurang-kurangnya dua nama ayah kepada kanak-kanak malang tersebut.
Mungkin hari ini, penemuan sains memungkinkan anak-anak yang dilahirkan dalam kelompok begini untuk mengenali ayah mereka. (Dr Zakir Naik: 20 Most Questions About Islam)
Lebih malang lagi bagi kanak-kanak yang melalui sistem poliandri ini, akan kehilangan sokongan ekonomi, peribadi dan komitmen sosial yang akhirnya memberi beban kepada masyarakat.
Apakah bentuk mesej yang bakal difahami oleh seorang anak apabila diberitahu bahawa dia lahir hasil pasangan lelaki yang ramai dengan ibunya?
Ujian DNA benar membantu dalam mengenal pasti identiti bapanya tetapi ini tidak menjamin perlindungan sosial dan ekonomi kanak-kanak malang tersebut (Rodeen Rahbar M.D: Marriage, Polygamy and the Hedonistic Paradox).
Selain itu, amalan poliandri menyukarkan seorang isteri melaksanakan tugasnya sebagai seorang isteri kepada setiap pasangannya, berbeza dengan poligami yang mana seorang suami lebih mudah menguruskan hubungan rumah tangga bersama isteri-isterinya kerana secara fitrahnya, lelaki lebih cenderung dalam berpoligami berbanding wanita. (Stanislaw Krlewiec: 1998).
Peranan suami sebagai ketua keluarga akan musnah dan menimbulkan kekacauan dalam penentuan tugas serta menunaikan tanggung jawab. Misalannya dalam memberi nafkah, dan menjadi wali kepada anak perempuannya yang ingin berkahwin, kepada siapakah tanggung jawab ini perlu diserahkan?
Masalah pewarisan harta turut akan timbul hasil daripada sistem yang bersifat kacau bilau ini (Khurshid Ahmad, Aishah Lemu: The Family And Character Building).
Hubungan suami isteri dalam keadaan poliandri juga memungkinkan risiko penyebaran penyakit-penyakit yang membahayakan, seperti Chlamydia Trachomatis dan Gonnorrhea, kesan daripada pembiakan bakteria di organ pembiakan lelaki dan wanita. Dan tanpa sedar, ia turut membawa kematian.
Sedar atau tidak, Allah memberi pengajaran yang cukup bermakna kepada pengamal poliandri. Manusia yang bermaruah dan berakal sewajarnya meletakkan dirinya sesuai dengan fitrah semula jadinya.
Mulianya manusia kerana akal serta tanggungjawab. Poliandri adalah bukan tabiat manusia tetapi ini adalah tabiat semula jadi haiwan dan ini telah dibuktikan oleh Marlen Zuk, Profesor Biologi di UC Riverside.
Dalam kajian DNA yang dilakukan ke atas burung-burung baka Australia yang mempunyai bulu berwarna-warni dan menarik, didapati 90 peratus daripadanya mempunyai gabungan DNA hasil proses mengawan antara seekor burung betina dengan beberapa ekor burung jantan. (Carol Cruzan Morton: The Chronicle 17 Februari 2003).
Kajian yang sama dilakukan terhadap lebah dan hasil penemuan membuktikan lebah perumah atau ratu lebah akan mengawan lebih daripada 20 ekor lebah jantan.
Bagi spesis yang lebih liar lagi menjangkau 60 ekor lebah. (TEKTRAN, United States Department of Agriculture Agricultural Research Service: 4 Mac 1999).
Apakah anda telah menemui jawapannya mengapa Islam menafikan amalan poliandri dalam masyarakat? Semoga dapat dikongsi kecantikan Islam sebagai agama fitrah yang sesuai sepanjang zaman.
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18/05/2003
KUALA LUMPUR May 17 - The Selangor government needs to review the implementation of the Selangor Family Law Enactment 2003 as it is found to discriminate against women, said Sisters In Islam (SIS) Saturday.
SIS, a non-governmental organisation (NGO) that champions the rights of Muslim women, said the enactment which aimed to tighten conditions for polygamy had, on the contrary, relaxed these conditions and caused women to be oppressed.
SIS research manager Nik Noriani Nik Badli Shah claimed that the enactment, which allowed an existing wife to be given a share of the husband's matrimonial property (harta sepencarian), also gave room for the husband to claim from the matrimonial property with the existing wife before taking on a new wife, and this could be abused by the husbands.
"We are concerned that this loophole may be exploited by irresponsible husbands and cause further injustice to the existing wife and children," she said at a media conference here.
Nik Noriani said that in addition, the husband had also been extended an additional right to a fasakh divorce without any need to go to the Syariah Court while the wife was not accorded the same right or protection in seeking for fasakh divorce.
Previously, the husband must declare the talaq at the Syariah Court.
She said the recommendations put forward by SIS were made after a rigorous analysis of the syariah laws and guided by principles of justice and "maslahah" espoused in Islam.
"We are also deeply troubled that the new enactment would serve as the blueprint to be adopted by other states which would further discriminate against women," Nik Noraini said.
She said SIS urged that a committee which would include representatives of all women organisations be set up to review the Selangor Islamic Family Law Enactment.
The Bill had been amended to further tighten the law on polygamy and to improve the position of women, but when analysed it was found to be more discriminatory against women.
