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Converts exploit Malaysia's Syariah court to get custody of kids
The separate jurisdictions of Malaysia's Islamic and civil courts are being exploited by estranged spouses to gain custody of children, a situation that poses risks to national harmony, the Attorney-General has said
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he separate jurisdictions of Malaysia's Islamic and civil courts are being exploited by estranged spouses to gain custody of children, a situation that poses risks to national harmony, the Attorney-General has said.
Abdul Gani Patail was referring in particular to inter-faith marriages where one spouse converts to Islam after marriage, and when the relationship sours, gains custody of their children through the Syariah court while ignoring the civil court's ruling.
He did not cite specific cases in his speech on Nov 11 at the National Law Conference. However, there have been two high-profile cases recently in which two non-Muslim women's ex-husbands, who were Muslim converts, made away with their children after gaining custody through the Syariah court, while ignoring civil court rulings in their ex-wives' favour. Both cases are now with the Court of Appeal.
There is no data on such cases but activists say there are a handful of cases in each state annually.
Civil rights activists responded to Abdul Gani's comments by urging the authorities to lay out clear policies and amend laws to clarify how custody of children from mixed marriages involving a Muslim should be decided.
Abdul Gani also noted in his speech that the increasing number of such cases has led to allegations of racial discrimination by the courts and the authorities, including the police and the Attorney-General's Chambers (AGC), which dent their credibility.
"The failure of the converting spouses to resolve the family arrangements prior to conversion, and in fact attempting to use the different jurisdictions of the civil and Syariah courts to their advantage, jeopardises not only family harmony but also potentially national harmony," he said.
He added that proposed amendments in 2009 to laws governing marriages under both judicial systems were still pending. These amendments would allow matters such as child custody to be decided by the court where the marriage was registered.
Malaysia's dual-track legal system means that while it is governed by civil law, the Federal Constitution allows for Syariah Courts to adjudicate for Muslims who make up 60 per cent of the 30 million population.
Civil courts have largely deferred to Islamic courts even where one party is non-Muslim, such as in interfaith marriages, and the Syariah judges have consistently granted the Muslim parent custody of children so that they will remain in the faith.
Sisters in Islam, a group that promotes women's rights, referring to disputes in which children were converted to Islam by one spouse without the other's knowledge, said the majority of these cases involved spouses who were both non-Muslim when they wedded but with one of them converting during marriage.
"It's the ambiguity of the law which results in such conflicts," its programme director Suriani Kempe told The Straits Times. "If the A-G does not want the integrity of the police or AGC to be questioned, he should push for the 2009 amendments to be tabled in Parliament and let it debate the merits."
Lawyers for Liberty, a human rights group, said there was a lack of political will to close the legal loopholes. Executive director Eric Paulsen said: "No one wants to be seen as not prioritising Islam."
Right-wing Muslim groups have defended the unilateral conversion of children and even the abduction of a child by its Muslim parent who said it was for the child's "protection". (***)
