Unconstitutional To Require Non-Muslims To Seek Remedies in Syariah Court

Letter to Malaysia-Today by Tricia Yeoh, Centre for Public Policy Studies

The Centre for Public Policy Studies views with concern the recent majority decision of the Court of Appeal in Subashini v Saravanan where the Courts effectively required a non-Muslim to submit to the jurisdiction of the Syariah Court to have the theological laws of Islam applied to her in order to remedy unconstitutional orders from the Syariah courts in respect of their non Muslim marriage. In this ruling, the majority of the Court of Appeal also seem to have upheld the notion that one parent could convert an infant child to Islam without obtaining the consent of the other parent, and then go to the Syariah courts to get custody orders in respect of those infant children without the participation or consent of the non-Muslim spouse.

It is the Centre’s view that requiring a non-Muslim to seek remedies in the Syariah courts is unconstitutional and unfair. The Federal Constitution of Malaysia clearly states that the Syariah courts have jurisdiction only over persons professing the religion of Islam. To subject a non-Muslim to the laws of Islam would be unfair as a non-Muslim does not profess that religion so as to require the non Muslim to be governed by theological rules of that religion. The Centre is also of the view that true parental equality requires that both parents consent to any change in religion of an infant child.

It is important to note that we live in a plural society where adherents of different faiths interact freely with one another. What maintains this balance of mutual respect is a system that recognizes and ensures equal justice for all citizens alike. The Constitution as supreme law of the land has provided such a system that affirms justice for Muslims and non-Muslims respectively.

The recent ruling by the majority of the Court of Appeal sets a worrying precedent for future cases. Referring a non-Muslim to the Syariah courts for judicial reliefs is tantamount to impeding the constitutional rights of non-Muslims to profess and practise their faiths in peace and harmony. Access to justice is denied. This is contrary to the spirit and constitutional context of the system that all Malaysians have hitherto enjoyed.

If the law as it stands means the civil courts are unable to grant remedies to the non Muslim spouse (something the Centre doubts), then it is high time legislative intervention makes it clear that any court applying a religious law can only exercise jurisdiction over persons professing that religion.