Tuesday, January 5, 2016

Minors converted to Islam can seek redress after turning 18, Shariah lawyer says

Thursday December 31, 2015
06:54 AM GMT+8

Lawyer Musa Awang says children who have been unilaterally converted to Islam can seek redress after they turn 18. ― File pic

KUALA LUMPUR, Dec 31 ― Children who have been unilaterally converted to Islam will have to wait until age 18 to ask the Shariah courts to recognise them as non-Muslims, lawyer Musa Awang has confirmed.

The president of the Malaysian Shariah Lawyers Association (PGSM) was commenting on the high-profile case of Hindu mother M. Indira Gandhi’s legal challenge to reverse the unilateral religious conversion of her three children by her former husband after he embraced Islam, after losing in a 2-1 decision at the Court of Appeal yesterday.

Musa said that while a non-Muslim parent cannot initiate a lawsuit in the Shariah courts on behalf of their children under existing laws, the converted children could do so after reaching the age of maturity.

“Yes, when they are 18, they [can] apply to the Shariah court to declare that they are no longer Muslims,” he told Malay Mail Online when contacted yesterday.

He added that there are many such cases in the Islamic courts.

For those who have yet to turn 18 however, Musa said they will have to rely on a Muslim family member or Muslim friend who knows of their situation to file a lawsuit on their behalf in the Shariah courts.

He clarified that a Shariah lawyer would not be able to initiate legal proceedings on behalf of children who are still considered minors.

In Malaysia, those who reach the age of 18 may determine their own religion.

Musa also said that while non-Muslim parents like Indira cannot be a party to their converted children’s legal proceedings in the Shariah courts, they can still file applications there and ask to present their statement to support their children’s bid to be recognised as non-Muslims.

Following the civil court’s deferment to the Shariah court yesterday on child conversions, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) questioned the likelihood of non-Muslims being served justice by an Islamic court when the law prohibits their appearance there.

But Musa disputed the non-Muslim interfaith panel’s argument.

“Because I feel that the Shariah courts never refused any application to give statements. You look at the case of Nyonya Tahir in Malacca, the non-Muslim family came to court and gave statement. Before the court gave its judgement, they called all the family members, but they are non-Muslims,” he said, referring to the 2006 landmark case.

“Not true to say no justice for non-Muslims,” he added.

The case of Nyonya Tahir is seen as significant because the Negri Sembilan Shariah Court had declared the woman of Chinese-Malay descent born Wong Ah Kiu to be non-Muslim at the time of her death aged 89 as she had been raised a Buddhist and had practised Buddhism her whole life.

Malaysia’s constitution stipulates that all Malays are automatically Muslims but those who convert out are regarded as apostates, which incurs a heavy social stigma.

Musa confirmed that while non-Muslims cannot be witnesses in the Shariah courts, they can still appear there to present their views and assist the judges.

He acknowledged that Shariah courts have no jurisdiction over non-Muslims, but emphasised that its judges have discretionary powers to call anybody, including non-Muslims, to court to give a statement, especially when no Muslim witnesses are available in a case.

The Shariah Courts Evidence Enactment Perak 2004’s Section 87(2), he said, is an example of state religious law in which the testimony of non-Muslims can be tendered in a Muslim case.

Elaborating, he said a non-Muslim such as a doctor who appears in the Shariah courts can either give an oral statement or a written statement in the form of an affidavit, and can be cross-examined and questioned just like a witness despite not having such status.

He explained that testimony from non-Muslims is regarded as “bayyinah” while a Muslim’s testimony is known as “syahadah”, with the difference being that the former is not binding on the Shariah judges.

In Malaysia, Islamic matters fall under the jurisdiction of each respective state.Malay Mail Online’s check of Islamic evidence laws in several states showed that Muslims who are not  deemed as competent to give evidence in the form of “syahadah” may be able to give “bayyinah” instead.

When evidence from both Muslims and non-Muslims are available in the same case, the Shariah courts will take into account the strength of evidence presented and favour the stronger evidence, he said.

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