The Federal Court's judgment in the R. Subashini case on Thursday has gouged a deep groove in the legal system. The court decided that only civil courts could decide on the divorce of a union formed under the Law Reform (Marriage and Divorce) Act 1976. However, where one spouse has converted to Islam, the Muslim spouse has a right to seek relief from the syariah court. This means the non-Muslim spouse can only seek justice in the civil court, while the Muslim-convert spouse can seek justice in the syariah court. Two parallel avenues of justice. To complicate matters, the court also found that a parent could, unilaterally, convert a child without the consent of the other parent. ANIZA DAMIS speaks to Institute of Islamic Understanding of Malaysia (Ikim) director-general Dr Syed Ali Tawfik Al-Attas on the impact of the ruling on Muslims and non-Muslims in the country
Q: What is justice in Islam?
A: Justice means putting things in the right place. Everything has a place. In this case, if you make a contract in a civil ceremony, the right place to seek a termination of that contract would also be at that civil ceremony.
T. Saravanan @ Muhammad Shafi should have been told, by the people who furthered his interest in the religion, that Islam places a great emphasis on the making and breaking of contracts.
Here is a person who had conducted a marriage in a civil ceremony with R. Subashini, a Hindu. Therefore, in order to terminate that contract made in a civil ceremony, he should go back to that civil authority and break it.
Q: The Federal Court has decided only the civil court can dissolve the marriage. At the same time, it says Shafi also has a right to seek relief from the syariah court and get a divorce there.
A: Yes, but that divorce (in the syariah court) would not be recognised. It would only be recognised by the civil court as evidence that such a thing took place under syariah.
Q: What is Saravanan's responsibility to his family and what is Shafi's responsibility to his family? Are they different?
A: No, they are the same. It's not that he is Saravanan or he is Shafi. He is one and the same person, therefore, his responsibility remains. As a Muslim, his responsibility now is to teach his children about Islam. His responsibility is to educate them. The mother is not responsible for that — she has not been entrusted with that responsibility.
Q: The second child is not Muslim at the moment.
A: Who said the child is not Muslim? According to Islam, all children are born with fitrah, meaning a natural inclination towards Islam.
You could be the product of a Hindu, Buddhist or Christian marriage, but for Muslims, children are not seen as Christian, Buddhist or Hindu. What we see is, "Here is Allah's majesty. Look at what He has created".
Q: So, then there would be no need for conversion?
A: Exactly. How can you convert a child? First of all, when you talk about conversion, you are talking about responsibility. In order to have responsibility, you have to comprehend what you are responsible for. Can a child of that age understand what he is being held responsible for?
Allah does not hold a child accountable. That is why in Islam, there is this thing called the age of baligh — the age of maturity — which is generally thought to be around 15. He is then ready to accept the responsibility entrusted to him. And he is also ready to accept accountability — in other words, punishment. But before that, there is no punishment.
Q: So, why the need to convert?
A: There is no need. God Himself does not consider the child responsible.
Q: What about instances where one parent is of one religion and the other is of another?
A: Shafi's responsibility is to raise his children in accordance with Islam. His responsibility is to educate them, feed them, clothe them.
If he is worried that his sons will grow up to follow the mother's religion, well, his fears are unfounded. Because he is an example of that not being the case. It's no guarantee that just because you are born to a Hindu, Buddhist or Christian parent — or even a Muslim parent — that you will remain in that religion.
Q: What about people who convert without telling their families or wives, and suddenly, the wives find out they are no longer the wife.
A: If you start putting these things down as law, there is a tendency to look at it literally. There is no hikmah (wisdom).
Supposing there is a person who is not a Muslim, living in a large community of non-Muslims. He wants to become a Muslim. For his own safety, he might feel, "If I go and tell my community, they might not agree with it, and they might harm me. I will have to keep it silent".
But he still wants to convert and he does. There is also wisdom in that. Fearing for his safety, he doesn't inform other people. It could be that.
Q: In our multi-religious, multicultural society that is supposedly tolerant and respectful, what's the value of professing a religion if you can't practise it in the open?
A: Who said there is "no freedom" here? You can practise whatever you want in this country.
Q: But a person can't change her religion very easily.
A: You cannot extrapolate on one case. If you are referring to the Lina Joy case, how do you know that it's not easy to convert based on one case?
The Lina Joy case had nothing to do with religion or with whether she wants to convert or not. She just didn't want to follow the rules set by the National Registration Department.
The assumption is that the syariah system is unjust. Her lawyers supported this idea because they extrapolated that you won't get justice in the syariah court.
Therefore, the onus of responsibility now is not on the court and the individuals in the court, but on the religion itself.
That's ridiculous. In her case, too, the Muslims are upset and angry, not because she is leaving Islam, but because they are denied their responsibility to guide her on the path of Islam. Her lawyers are screaming that we are denying her freedom of religion. This is not the case. If she wants to be a non-Muslim, be a non-Muslim.
But the community of Muslims has a right to consult with her and ask her why she wants to leave Islam. For Muslims, Islam is the most complete, perfect religion. Therefore, it is strange to any Muslim for anyone to want to become a non-Muslim. This is the Muslim's right of responsibility — he has a right, because he has a responsibility to the ummah to ask this question. If you deny them this right, obviously the Muslims will get upset.
Q: That's looking at it from a Muslim perspective.
A: Look at the non-Muslim perspective as well. They get upset if they are not allowed to consult with those who wish to leave the flock and convert to Islam.
Q: The thing that upsets non-Muslims is that Muslims are detained when they wish to leave the religion.
A: Does that have to do with religion or is it an administrative injustice? It has nothing to do with religion, as far as I am concerned. How they do it, that's another matter altogether. When you start talking about detention, rampas mayat (seizing the corpse) and so on, those are all administrative. I disagree with all that.
Q: Why is it happening?
A: Loss of adab (manners), ignorance, and people who are put in positions of power who really have no ilm (knowledge). They don't have any hikmah. They are just allowing these things to occur and they don't care. All in the name of religion. You can't do that.
I don't care whether your religion is Islam, Christianity, Hinduism or Buddhism. You cannot use this as a tool for your political considerations. And that's what's happening.
Now, in the Subashini and Saravanan case, I feel very, very badly for these two people, and for the children. These are the victims.
As far as Islam is concerned, the Prophet abhorred divorce. He really despised it. But he did say, "If there is no other choice but to divorce, let the divorce be amicable". Let it be settled in a nice way.
Why was Shafi not advised about this? Why are Subashini's lawyers not advising her like this? Ultimately, these are the people who are suffering. You think the lawyers and the judges suffer? No. These people — Shafi, Subashini and the children — they suffer.
This is a family case. Why is society sticking its nose into this?
Q: Maybe they have become the standard-bearers of a bigger fight?
A: Society has become confused. What is the bigger fight? Freedom of religion? Are you not free? Nobody is forcing anybody.
Q: Perhaps not in the case of Shafi, but there have been instances where non-Muslims convert to Islam to escape responsibility.
A: They are abusing the system. You cannot simply run to the syariah court, to Islam, to escape something else. Contracts are very important in Islam.
Q: But in the instance where someone says he is Muslim, you have to take his word for it that he is Muslim. Should the syariah court be giving him shelter, where perhaps he is seeking shelter for the wrong reasons?
A: When somebody claims he is a Muslim, you can actually judge if he really is a Muslim or not, by three things:
When he makes a contract, he breaks it; when he is given a responsibility, he shirks that responsibility; when he speaks, he lies. These are the signs of an evil person.
So, if a fellow claims he is a Muslim, and yet his actions do not reflect it, then he is not a Muslim. So if a fellow is converting because he wants to escape something, you cannot shelter him for that. You have to live up to your responsibility.
If a person has recently converted to Islam, there is no question about the division of property according to Islam, because he accumulated all that when he was not a Muslim.
Whatever property he accumulates after he becomes a Muslim, that's different. That belongs to him — his wife has no say in that.
In my opinion, in the Subashini case, the wife should have custody of the children. They are still young. They need their mother.
Q: This judgment is different from Lina Joy, in that the court this time did not say "We have no jurisdiction". It said: "We have jurisdiction, but you can go to the other side (syariah courts) as well."
A: It's an ambiguous judgment. I'm worried. This is going to escalate, and people are going to start accusing Islam, and religion generally, as being the problem. But it's not Islam. This is not a problem just for Muslims, it is a problem for everybody.
Q: If the non-converting spouse refuses to file for divorce in the civil courts, but the Muslim spouse gets a divorce from the syariah court, does that absolve the Muslim spouse of his responsibilities to the civil law marriage?
A: That is a problem. On the one hand, the syariah court only listens to Muslims. On the other hand, civil courts cannot interfere with the syariah court. Therefore, if the husband decides to divorce and the wife doesn't, then we have a big problem. It doesn't make sense. If the syariah court grants a divorce, the civil court only takes that as evidence. But, strictly speaking, he is still married in the civil system.
As I said, they should have been told: "If you have a marriage in a civil ceremony to a non-Muslim wife, and now you have become Muslim, your responsibility is to go back and resolve that in a civil ceremony as well". That would solve the problem.
Q: What should the conclusion to the Subashini case be?
A: As I said earlier, if you have conducted your marriage in a civil ceremony, then you should conduct your divorce in a civil ceremony.
Shafi should be advised properly. The wife should also be advised properly. There should not be so much acrimony.
The wife says she is being treated unfairly. I agree with her. But I also agree with Shafi. He is also being treated unjustly.
Q: What would you say to people who see this as a Muslim/non-Muslim argument?
A: It's not. This has got nothing to do with religion. This has to do with administrative justice.
Q: So, what do we need to do to correct this administrative injustice?
A: Remove the people who are causing the problem, and put in the ones who are qualified to deal with it. Remove the unqualified, because they are misguiding society.
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