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Converting spouses adding to conflict between civil and Shariah courts, says Malaysian AG

KUALA LUMPUR — Marriages between Malaysians of different races risk harming national harmony, said the country’s Attorney-General, Mr Abdul Gani Patail. He noted that many such unions have resulted in bitter disputes over the religious status of the couple’s offspring.

Malaysia's Attorney General Mr Abdul Gani Patail. Photo: The Malay Mail Online

Malaysia's Attorney General Mr Abdul Gani Patail. Photo: The Malay Mail Online

KUALA LUMPUR — The bitter dispute over the religious status and custody rights to children in a marriage that turns sour after one of the spouses embraces Islam is creating new conflicts between the civil and Shariah courts, Malaysia's Attorney-General (AG) has said.

AG Tan Sri Abdul Gani Patail noted that such cases then become controversies as it involves the jurisdiction of two distinct court systems and could risk Malaysia's multicultural harmony as they have led to claims of “racial discrimination”, adding that law reforms meant to solve such problems have yet to be approved.

"Inter-racial marriages have given rise to a new conflict between civil law and Shariah law in relation to the unilateral conversion as well as custody issues of minor children where only one spouse converts to Islam.

“The increasing number of cases has also raised allegations of racial discrimination by the courts and authorities. The anguish to the families cannot be overstated and that is a fact.

“In this regard, 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 Shariah courts to their advantage, jeopardises not only family harmony but potentially national harmony,” the top government lawyer said according to his written speech from the ILKAP National Law Conference 2014 last week.

Abdul Gani said the problem of enforcing conflicting orders from the civil courts and Shariah courts in such disputes then calls into question the Attorney-General’s Chambers (AGC) and the police’s integrity, adding that this would hamper their ability to effectively carry out their duties.

Abdul Gani did not name any examples of such court cases, but there are two high-profile cases that have hit national headlines — the cases of non-Muslim mothers Indira Gandhi and Deepa Subramaniam, where both women’s Muslim convert ex-husbands ran off with their children.

In both cases, the Muslim convert ex-husbands cited the Shariah court orders granting child custody to them when refusing to comply with the civil court’s child custody orders in favour of their former spouse.

Despite recovery orders from the Ipoh High Court and Seremban High Court directing the police to act to find and return the abducted children to the non-Muslim mothers, the police have declined to take action and are now seeking the courts’ clarification instead.

Both cases did not involve spouses from different races, but the line between race and religion can sometimes be blurred in Malaysia as a Malay is constitutionally defined as one who professes the religion of Islam, among other things.

Abdul Gani said proposed amendments to three laws were mooted in 2009 to ensure that matters such as child custody and child maintenance would be decided by the court where the marriage was registered.

“These amendments, however, remain pending,” he said, without elaborating further.

He listed down the three laws of Law Reform (Marriage and Divorce) Act 1976, the Islamic Family Law (Federal Territories) Act 1984 and the Administration of Islamic Law (Federal Territories) Act 1993.

Lawyers have argued that child custody matters for a marriage that was initially between two non-Muslims should be decided by the civil courts even if a spouse later converts to Islam.

This is because a marriage that started out as a civil union should end or have any related issues ruled upon in the civil courts, instead of the Shariah courts for marriages between two Muslims, the lawyers said.

Correction: An earlier version of this article had inaccurately reported the Attorney-General as saying interracial marriages put national harmony at risk. The erroneous report was unintentional and has since been removed. Malay Mail Online apologises for the misreporting.

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