Sharia courts effectively operate as the court system for Muslims in Malaysia. We have seen such religious courts operate in the United States, particularly the jewish courts in New York which has operated for decades. Similar courts operate in England and other countries. The authority of “courts” is based on little more than a contract or consent. People can agreed to have their civil disputes resolves by a race of rain drops on a window if they want. The problem is one there is a breakdown of separation between religion and state in places like Malaysia and other countries following, in this case, Sharia traditions.
Gandhi has been trying to get her daughter back ever since her husband tucked the baby under his arm and rode off on a motorcycle. Her area is dominated by ethnic Malay Muslims and there has been a rise of Islamist political parties in the area. -dominated government of doing too little to resolve problems when those legal systems collide. The government has become increasingly reliant on support from Islamist and right-wing pressure groups as other constituencies flock to the opposition. At the same time, there has been an erosion of independence in the civil courts. In 2007, a civil court ruled that a Muslim spouse had the right to convert his children without the mother’s consent. While in 2009, the Cabinet issues a decision against such one-parent conversions, it failed to make the decision legally binding.
The government has long pledged to tackle legal ambiguities related to religious conversions. But a Cabinet decision in 2009 to allow minors to be converted only with both parents’ consent has yet to be made legally binding.
Gandhi’s daughter, Prasana Diksa, is now six. She was still on breast milk when the husband, Muhammad Riduan Abdullah, took her. He then went to the police station and had the birth certificates of their children changed to show that they were now Muslims. Gandhi took the other children into hiding in fear that the Islamic authorities would take them as well.
A few months later, a Sharia court granted Riduan temporary custody of all three children. It gave no explanation or grounds for its decision. However, a civil court in 2010 ruled for Gandhi and awarded her custody of all three children. Then a civil court quashed the conversions, a rare win for Non-Muslims against a sharia court in a civil action. Riduan then lost an appeal and in May the court order the police to arrest him for contempt. However, the police have refused to act.
In the meantime, the husband’s lawyer, Anas Fauzi, said that Riduan remains bound by the Shariah order which is a higher authority. Islamic cleric has denounced the very idea of the child being given to a non-Muslim mother. Abdullah Zaik Abdul Rahman, the head of the Islamic right-wing group Isma, insisted that the problem is the mother and the civil courts. He is calling for a law that clearly states that Sharia court rulings “must be final.”
Riduan continues to live with his daughter and has changed her name to Ummu Habibah Muhammad Riduan. They live in a Muslim community in northeastern Kelantan state.
The plight of this mother is a microcosm of growing conflict between secular and religious legal values in other countries. There is an obvious “problem of translation” between the two systems. To call Sharia systems “courts” is itself a corruption of usual meaning of that term in the West. Sharia “judges” impose religious orthodoxy while outwardly professing to act as a court. This is religion not law and these are more clerics than judges. There continues to be an international effort to get people to recognize this system as a legitimate alternative to civil authority, even a more enlightened alternative.
I do not contest the right of consenting adults to forego civil courts in favor of such religious courts. Indeed, I would fight for their right to do so. However, the key here is consent. Moreover, the scope of such courts may be more limited when the rights of third parties like children are involved.
Malaysia appears at a critical crossroads. The country has a sizable non-Muslim tradition and a legal system built under British rule. This case is a chilling example of the growing and de facto authority of religious courts over civil authority.
Source: New York Times