Unfortunately, Islam as a great religion has been let down kau kau by some "Muslims" in Malaysia.
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Although the Supreme Court acknowledged that Islam was not just a mere collection of dogmas and rituals but a complete way of life covering all fields of human activities, be they private or public, legal, political, economic, social, cultural, moral or judicial, it held that this was not the meaning intended by the framers of the Constitution.
So far as Islam was concerned, the result of the development of law by the British in Malaya had the effect of turning the legal system into a secular institution. Thus, all laws, including the administration of Islamic law, had to be validated through a secular fiat.
The court also observed that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in the narrow confines of the law of marriage, divorce and inheritance — the sphere of personal law. This private aspect of Islamic law is only applicable to Muslims as their personal law.
Islam being the religion of the Federation did not mean that laws passed by Parliament must be imbued with Islamic religious principles; nor did the existence of Syariah law prior to independence require that laws of general application must conform to the Syariah, for to hold otherwise would be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act 1956, which provides for the reception of English common law in this country.
It is in this sense of the dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. Religion being often described as a sensitive matter in Malaysia, the concluding words of Salleh Abbas LP are noteworthy:
“... we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.”
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The religion has been exploited by people who have no true respect for nor sincerity in their faith. Their questionable acts or exploitation of Islam for their personal benefits have brought terrible disrepute to the good name of a great religion.
Advice on the following: If the cap fits then wear it (Siapa makan cili, dia rasa pedas), otherwise the following are to be considered hypothetical cases for academic-social discussions:
Race issue - To be a 'constitutional' Malay in Malaysia, which is as good as one born an ethnic Malay (who's automatically a Muslim), one of the conditions is that the 'constitutional' Malay must be a Muslim.
Thus if one was not borned a Malay or Muslim, then one must convert to embrace Islam if one desires to be a 'constitutional' Malay.
The benefits of being a 'constitutional' Malay are the same as for ethnic Malays.
I needn't say anymore.
Inheritance issue - say a hypothetical situation in which an Indian (may well be a Chinese) passes away. His wife is a Hindu (may well be Christian, Buddhist or Taoist) but his brother is a Muslim.
Brother claims deceased had converted to Islam though no one else in family has been aware of that. Wife protests, objects, cries that's not true but unsympathetic religious authorities takes away the body of the deceased, 'recognized' by them as a Muslim, for a Muslim burial.
Forget about his body remains - Who inherits his possessions, wife or the Muslim brother who coincidentally is the only one in the family who knows of the deceased being a Muslim convertee?
I ask because I've to admit I'm not sure of the Islamic laws on inheritance but I have been told that everything owned (left) by the deceased goes to his nearest Muslim relative, effectively his Muslim brother.
The non-Muslim wife gets zilch!
What I've heard has been that in real life or lives this/these had happened.
Question is on the veracity of the deceased's conversion when he was alive, but no one other than his only Muslim relative knows. What do you make of such a situation?
Child/Children custody issue - Do I need to discuss or provide cases? I recall there was a case a year or so back involving a Chinese family, where it's not always the husband who's the Muslim party. And that's just one case.
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These are issues of a constitutional nature where in the 2nd and 3rd cases, two parties with different irreconcilable religions would be in dispute. Yet our civil courts had from time to time, and all too frequently, abdicated the matter to the syariah courts which have no authority to decide on constitutional issues.
The syariah courts are only religious courts dealing with the personal laws for Muslims, generally marriage, divorce and inheritance, and are subject and subordinate to the civil courts.
For example, they can't pass the death sentence, nor fine anyone over RM5000, nor deal with constitutional issues. That's indicative of their subordinate status.
From an article in TMI dated 15 May 2015:
In 1988, a full bench of five in the Supreme Court (as the Federal Court was then known) had occasion to consider Article 3 in an appeal against a mandatory death sentence for drug trafficking and possession of firearms. It was contended on behalf of the accused that Islam being the religion of the Federation, as declared in the Federal Constitution, and the Federal Constitution being the supreme law of the Federation, the imposition of the death penalty was unconstitutional, being contrary to Islamic injunction.
Although the Supreme Court acknowledged that Islam was not just a mere collection of dogmas and rituals but a complete way of life covering all fields of human activities, be they private or public, legal, political, economic, social, cultural, moral or judicial, it held that this was not the meaning intended by the framers of the Constitution.
So far as Islam was concerned, the result of the development of law by the British in Malaya had the effect of turning the legal system into a secular institution. Thus, all laws, including the administration of Islamic law, had to be validated through a secular fiat.
The court also observed that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in the narrow confines of the law of marriage, divorce and inheritance — the sphere of personal law. This private aspect of Islamic law is only applicable to Muslims as their personal law.
Islam being the religion of the Federation did not mean that laws passed by Parliament must be imbued with Islamic religious principles; nor did the existence of Syariah law prior to independence require that laws of general application must conform to the Syariah, for to hold otherwise would be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act 1956, which provides for the reception of English common law in this country.
It is in this sense of the dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. Religion being often described as a sensitive matter in Malaysia, the concluding words of Salleh Abbas LP are noteworthy:
“... we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.”
But in recent times they have been considered as 'equal' to the civil courts by some Muslims. In more than one way, we have Mahathir's 929 and 617 Declarations to thank for this incorrect and unconstitutional belief.
Muslims have to ask themselves what the right attitude should be in this issue. To me, it depends on how Muslims define the doctrine of justice in facing non-Muslims who are genuinely denied their basic rights in any legal battle with Muslims.
It is unfortunate that some Muslims view the delicate issue of conversion only from the theological angle.
When the civil court abandons a constitutional issue to the syariah court, it also abandons the rights of and justice for the non-Muslim party. The non-Muslim party automatically faces gross disadvantage in the syariah courts - for a start, she can't be in the court. How can there then be true justice in today's modern world?
Here's the recent assessment of Mohamed Hanipa Maidin, who is Amanah (PAN) MP for Sepang and chairman of Kanun (as reported by FMT - extracts only).
Muslims have to ask themselves what the right attitude should be in this issue. To me, it depends on how Muslims define the doctrine of justice in facing non-Muslims who are genuinely denied their basic rights in any legal battle with Muslims.
It is unfortunate that some Muslims view the delicate issue of conversion only from the theological angle.
This attitude takes a simple view that the Muslim father or mother must save his or her children’s faith at all costs thus justifying denial for the non-Muslim parent to have any say on the custody or conversion of the children.
That is how they define justice. Simply put, justice equates to victory in getting custody and conversion of the children at all costs.
Any Muslim who holds this view simply endorses the unilateral action of any Muslim parent to convert their children to Islam thus ignoring the audi alteram partem (right to be heard) of the non-Muslim parent. The subscribers to this view also believe that the only forum qualified to hear the conversion case is the Syariah court. Period.
To be honest, I too hope we could reduce this nightmarish issue simplistically. But the problem with this view is that it is based on certain false assumptions.
First, it is assumed that Malaysia is governed by a single legal system administering all Malaysians regardless of their religious beliefs.
It also puts non-Muslims and Muslims on the same platform thus they must be subject to the same court namely the Syariah court.
It also assumes that before the divorce, both spouses contracted the marriage under Islamic law and not under the law reform (marriage and divorce) Act and hence there is nothing wrong if the Syariah court deals with their marital problems.
The fact that the Court of Appeal decided that only the Syariah court should have sole jurisdiction to hear and determine the validity of the conversion seems to suggest that the civil court also subscribes to the same view.
That is how they define justice. Simply put, justice equates to victory in getting custody and conversion of the children at all costs.
Any Muslim who holds this view simply endorses the unilateral action of any Muslim parent to convert their children to Islam thus ignoring the audi alteram partem (right to be heard) of the non-Muslim parent. The subscribers to this view also believe that the only forum qualified to hear the conversion case is the Syariah court. Period.
To be honest, I too hope we could reduce this nightmarish issue simplistically. But the problem with this view is that it is based on certain false assumptions.
First, it is assumed that Malaysia is governed by a single legal system administering all Malaysians regardless of their religious beliefs.
It also puts non-Muslims and Muslims on the same platform thus they must be subject to the same court namely the Syariah court.
It also assumes that before the divorce, both spouses contracted the marriage under Islamic law and not under the law reform (marriage and divorce) Act and hence there is nothing wrong if the Syariah court deals with their marital problems.
The fact that the Court of Appeal decided that only the Syariah court should have sole jurisdiction to hear and determine the validity of the conversion seems to suggest that the civil court also subscribes to the same view.
The civil court apparently does not care that the effect of the judgment is as good as closing the door of justice on the non-Muslim litigant. In other words, the court seems to play down the principles of natural justice.
That is why Muslims, particularly religious scholars, should not view this issue within the narrow compass of the theological perspective alone. On the contrary, justice for all which stands as a cardinal principle of Islam must be duly taken into account.
The Quran categorically reminds Muslims; “Let not hatred and enmity forbid you from dispensing justice. Do justice as it is closer to piety” (Al-Maidah: 8). This verse not only promotes justice for all but also enjoins Muslims to establish the most difficult part of justice, that is justice for your enemy.
That justice is the hallmark of Islam has been the view of great Muslim scholars such as Ibnu Al Qayyim Al-Jauziyyah who had aptly said; “The entire system of syariah is founded on the principles of justice, mercy and wisdom. Be that as it may, anything which is against those three principles are not syariah in spite of its labels.
Translating such principles into the case at hand, do Muslims really see any justice, mercy or wisdom in this legal battle when one litigant is forced to seek justice in the court that she is not allowed to go to, in the first place?
That is why Muslims, particularly religious scholars, should not view this issue within the narrow compass of the theological perspective alone. On the contrary, justice for all which stands as a cardinal principle of Islam must be duly taken into account.
The Quran categorically reminds Muslims; “Let not hatred and enmity forbid you from dispensing justice. Do justice as it is closer to piety” (Al-Maidah: 8). This verse not only promotes justice for all but also enjoins Muslims to establish the most difficult part of justice, that is justice for your enemy.
That justice is the hallmark of Islam has been the view of great Muslim scholars such as Ibnu Al Qayyim Al-Jauziyyah who had aptly said; “The entire system of syariah is founded on the principles of justice, mercy and wisdom. Be that as it may, anything which is against those three principles are not syariah in spite of its labels.
Translating such principles into the case at hand, do Muslims really see any justice, mercy or wisdom in this legal battle when one litigant is forced to seek justice in the court that she is not allowed to go to, in the first place?
Well said, Yang Berhormat, you're a credit to your great religion!
Additionally, as a non-Muslim I wonder why the Islamic religious authorities don't impose QA and QC on such cases, to wit, the entry qualifications, intent and vis-a-vis Islam the spirit of the 'convertees'?
If they don't because they are hard up for whatever whoever whichever converts, then they are the ones, and not so much the 'convertees', who have insulted Islam humongously.
To paraphrase a Christian saying, "To err is human, but for a cleric it's unforgivable"!
Amin!
