KUALA LUMPUR, Feb 12 ― The Federal Court ruling this week in an interfaith child custody battle has failed to consider the access to justice for Muslim converts, Muslim Lawyers Association of Malaysia president Datuk Zainul Rijal Abu Bakar asserted today.
Zainul Rijal claimed that mainstream Muslims in Malaysia are dissatisfied with the Federal Court’s ruling in the case of Hindu mother S. Deepa and her Muslim convert ex-husband Izwan Abdullah, in which the apex court declared the civil courts as having sole jurisdiction to determine divorce and child custody rights in civil marriages.
“Often times it is said that the rights of those who did not convert to Islam have been denied, that non-Muslims have been oppressed.
“But almost no one have presented the fact that the rights ― of those who converted to Islam or Muslim converts ― in civil law to dissolve their marriages are not recognised at all. Where is the justice for these Muslim converts?” he wrote in his opinion piece in Malay-language daily Sinar Harian today.
In backing his claim that the Federal Court’s Wednesday decision failed to consider the legal rights of Muslim converts, Zainul Rijal argued that Muslim converts are allegedly not given the right to file a petition for dissolution of marriage in the civil courts under Section 51 of the Law Reform (Marriage and Divorce) Act 1976.
Zainul Rijal claimed that Section 51 only allow non-Muslims to file for the marriage to be dissolved, arguing that the marriage cannot be dissolved if the non-converting spouse does not take any action, before highlighting that the Shariah courts do not have jurisdiction over non-Muslims.
He said the Muslims’ purported unhappiness with the Federal Court decision was due to the civil courts being untrained in Islamic jurisprudence to apply the Shariah laws on Muslim converts, whom he said had a constitutional guarantee like other Muslims to have their personal lives governed by the Islamic laws.
“What more it is clear that these civil laws are not applicable to Muslims. How can Muslims make any applications in the civil courts where his right is not given there.
“Accusations are always made that Muslim converts only embrace Islam because they want to run away from their civil responsibilities, but there has been no clear evidence given to show that these Muslim converts want to run away from their responsibilities,” he said.
In concluding his opinion piece, Zainul Rijal mooted a new law to enable the formation of a tribunal for cases in which one of the spouses in an initial non-Muslim couple converts to Islam.
Such a tribunal which would be less formal than the typical courts could consist of judges from both the civil courts and Shariah courts, with the Conference of Rulers to oversee and appoint the tribunal’s chairman, Zainul Rijal said.
He said this method would ensure both civil and Shariah legal viewpoints are taken into account and would cool down emotions and prejudices on both parties.
The protracted legal battle that started in 2013 saw Izwan unilaterally converting his two children to Islam before getting custody rights over them in the Shariah courts.
Deepa’s April 7, 2014 custody win for the two minors in the civil High Courts was marred when Izwan snatched away her son Mithran just two days later, with the police citing conflicting jurisdictions in declining to act on the civil court’s order to track down and return Mithran to her.
Almost two years after the son was snatched off, the Federal Court on Wednesday divided the custody of the two children after interviewing them, giving 8-year-old Mithran to Muslim convert father Izwan Abdullah and 11-year-old daughter Sharmila to Deepa.