Indira Gandhi-Syariah vs Secularism
INDIRA GANDHI- A TALE OF TWO SYSTEMS
Sandwiched between the parallel legal systems of Syariah and the Westminster styled ‘secular’ courts is one Indira Gandhi and her marriage to Patmanathan aka Riduan Abdullah.
Held captive as pawns in that battle are their three children. In particular the youngest child Prasana.
Thrown out the window in this debate is the law, good advocacy, the common sense and maturity required to deal with such problems. So too is the absence of lawyers (and at least one High Court judge) with the skills, competence and capacity to deal with a situation as complex as this particular matter.
Lawyers appearing before TV cameras yet again, unable to resist leading questions in the glare of unwanted publicity, fall into all sorts of traps by their inadequate and ill-informed responses. The result is that ‘perfect storm’ in the matter of Indira Gandhi vs Muhammad Riduan Abdullah.
In places as Australia, the US and the UK, courts rely heavy on conventional beliefs that mothers somehow make better parents than fathers do. In Muslim countries Islam takes precedence over all other doctrines and beliefs in deciding where the better interests of the children lie.
In countries such as Australia and the US the ultimate advantage to a party in a family law dispute is for the woman to plead domestic violence against her husband. It almost guarantees her an advantage over her husband in much the same way as it now appears to be the case in Malaysia, where conversion to Islam is likely to leverage an advantage over who gets custody care and control of the children. However in Islamic jurisprudence and to its credit, the rules are more simplified and simplistic lacking that hypocrisy that has enveloped the English legal system which prefers mothers over men in custodial matters.
CHOICES BETWEEN SECULAR AND THEOCRATIC
The position of Riduan Patmanathan and the children under Syariah law in this matter is being expediently and irresponsibly interpreted as a case of Islam versus freedom of religion and not for what it really is; This is a conflict between secular and theocratic legal systems. Islam of itself cannot be justifiably described as non secular although many secularists mistakenly believe it to be so.
At the heart of this debate is the yet to be matured parallel legal systems of Syariah Courts and the secular Westminster system of justice for the non Muslim communities in Malaysia.
The Westminster ‘secular’ courts was imposed on the Malays by their British colonial rulers before and at independence from Britain. That system has endured since independence and was embraced by the mainly Indian and Chinese Malayans then and a handful of elite, urban, English educated Malays.
There was nothing democratic, speaking through the majority, or constitutionally acceptable about the imposition of Westminster style courts in an independent Malaya. If at all it had a purpose, that purpose was to serve British interests in the hands of their successors in the colony, the Chinese and the Indians.
Over the past few decades an emergent, informed and determined Muslim Malay majority has been stealthily and gradually working towards restoring their cultural and religious institutions underpinned by the Syariah eroded by the Westminster ‘secular’ system in Malaysia.
The Malay Muslims have for decades been subject to a torrent of abuse more recently through the borrowed narratives of anti-Islamic rhetoric in media campaigns, designed to keep them marginalized, divided and to displace them politically. At least that is the perception by the Malays.
In between the two groups is an elite corps of upper middle class and privileged urban Malays (including some Sultans or state titular heads, traditional rulers) like the G 25 and Sisters in Islam, whose unmandated claims to speaking out on behalf of Muslims and Malays is about as legitimate and credible as the big bad wolf’s claim to being Red Riding Hood’s grandmother.
A CHRONOLOGY OF EVENTS LEADING TO THE CURRENT SITUATION
The parties were married in April 1993.
Sometime in 2009 the husband is said to have forcibly taken the child Prasana the youngest of the 3 children then 11 months old, from the mother and without her consent.
In that same year the husband, after having converted himself and his children to Islam ‘without the mother’s knowledge or consent’, obtained an interim order from the Syariah court in Perak for custody over all the children.
The Perak Syariah court made permanent orders awarding the husband custody over the children. In 2010, the secular civil division of the High Court on an application by the mother, made a set of conflicting orders giving custody of Prasana to the mother. It also issued a further order, for delivery of the child Prasana from the father’s control to the mother. Prasana was never returned to the mother.
The police were ordered to intervene. They did not. The child was not in the custody or control of a stranger. There was no immediate or present danger to the children for the police to intervene. At least there was nothing in the mother’s application to address any perceived danger and supported by evidence from her.
The matter of the High Court’s decision was not conclusive, as there were clear jurisdictional conflicts and constitutional difficulties the police were likely aware of at the time the High Court’s order came through. With the benefit of hindsight the IGP’s call was the right one to make in the circumstances.
In 2013 the same High Court quashed the certificate of Islamic conversion issued by the Syariah jurisdiction with respect to Prasana and her conversion to Islam.
Later in 2013, the mother applied to commit the husband to prison for refusing to deliver the Prasana to her.
In 2013, the husband filed an affidavit contending that the Syariah court orders relieved him of having to comply with the orders of the Civil High Court to return Prasana to the mother.
THE HIGH COURT’S DECISION- A CLASH OF JURISDICTIONS
In 2013, the husband filed an affidavit contending that the Syariah court orders relieved him of having to comply with the orders of the Civil High Court (secular) to return Prasana to the mother.
Whether that decision by the High Court in 2013 quashing the certificate of conversion is irreversible or curable by an administrative act Nunc pro tunc has never been explored by the parties. The High Court appears to have overstepped its jurisdiction in respect to the orders it made.
Whether the High Court has a right, the authority, the power or the jurisdiction to ‘de convert’ ( or reverse a conversion) an individual from Islam or any other religion is more than simply doubtful.It amounts to an intervention in the constitution and in the religious rights and practice of religion which it is not empowered to do either by itself on on behalf of others.
The High Court under the constitution has no jurisdiction over disputed matters involving the practice and administration of the religion of Islam. That only the Syariah courts are empowered by the constitution to undertake.
How then did the High Court vest itself with the powers to do what it did in quashing the conversion certificate? Its actions in this matter appears to have justified the conversion. In doing what it did The High Court cloaked itself with a jurisdiction and a constitutional power it simply does not have. And further in doing what it did the High Court further enlivened and strengthened the Syariah courts powers and authority in this regard by imitating the Syariah courts powers and it decision in the conversion.
Whether the High Court has any power, right or authority to deal with any matter involving the religion of Islam is more than merely questionable. It is clear that the High Court is not possessed of any of these powers to deal with matters relating to the religion of Islam conferred by legislation exclusively on the Syariah courts.
It is objectively likely that on an application by the father, the decision of the High Court to cancel the certificate of Islamic conversion could have been reversed and quashed.That job now appears to have been executed lawfully by the Court of Appeal.
Much of the reasons for this proposition concerning jurisdiction lies in the exclusive jurisdiction of the Syariah court against any other court to determine and to hear any matters relating to Islam under the constitution.
Indira’s lawyers could have mounted a constitutional challenge to the Syariah court’s decision to overrule (which is what it in effect did) the High Court’s decision as being invalid in that it usurps and infringes judicial power. They did not.
On balance, the High Court’s decision to annul the conversion and to quash the certificate of conversion of the children to Islam was flawed from a constitutional perspective and ultra vires. The High Court did not have the jurisdiction to do what it did in reversing the conversion of the child.
OTHER ISSUES OF CONTENTION
Nothing material of substance, relating to the dynamics of the relationship between husband and wife, during the marriage, to the point of its deterioration and dissolution by divorce, forms part of the discussion on this controversial case. Not even the fact of an arranged marriage between the pair (where consent is never real) is raised.
Criticisms of the decision of the Syariah court appears to focus on issues of what some elements of the media and the opposition, including Indira’s lawyers erroneously term and narrowly define, as the “unilateral conversion” of the children from Hinduism to Islam. This criticism of Syariah law by secularists is viewed as being incongruous with the idea of law itself.
Some analysis of the terms conversion, unilateral and consent needs to be undertaken here in a deeper context. It could provide a clearer understanding of the critical issues at stake in the decision of the Syariah court in this matter.
The controverted issues at the outset, which if examined under a clearer microscope may shed some light on why the outcomes in the Syariah court in this case have been particularly misunderstood by secularists.
There is sufficient and binding case law that supports the Court of Appeal’s decision in this regard. It may well support the father’s position and displace the notion that both parents are required to give consent to a situation as that which confronts the parties in this case: or that the ‘unilateral’ argument and definition of the word by secularists in this matter supporting the mother’s case is the correct one.
SYRIAH COURTS AND CONFLICTS WITHIN SECULARISM
In brief, the jurisdiction of the Syariah Courts that are relevant to this matter are as follows:
Article 121 (1A) of the Federal Constitution: it cloaks the Syariah courts with exclusive jurisdiction in the administration of Islamic laws, giving Syariah courts exclusive power and jurisdiction over Muslims on matters relating to their religion.
Where a conflict between a Muslim and non-Muslim party is concerned on matters relating to Islam, referred by one of those parties to the Syariah Court, the law is clear that only the Muslim party has standing and may be heard to the exclusion of the non-Muslim party. That is the constitutional position where conflict of laws is concerned.
This situation finds a number of parallels in places like India where the term secular has evolved to find new meanings and definitions, breaching even the wall of separation of state and church.
In India there are several marriage laws which operate in isolation to the exclusion of mainstream ‘secular’ marriage acts, along strict religious and caste lines.
There are a number of other ‘inconsistencies’ in India’s re interpretation of secularism and equality before the law. And India is a highly respected member of the comity of nations, the decisions of its courts continue to have persuasive effect on the direction and decision of cases before courts of many commonwealth states including Malaysia.
WHERE SYARIAH BEGINS AND ENDS
As State Courts, the Syariah has territorial jurisdiction only within the respective State Boundaries. There is no clear authority on cross vesting in the Syariah system.
The Syariah courts have exclusive jurisdiction and authority to decide in regards to Muslims on matters of
- Family laws in respect of marriage, divorce, custody, guardianship and maintenance of children, matrimonial property, and alimony.
although these powers and jurisdiction of the Syariah courts is not limited to that mentioned above alone.
Where the court’s jurisdiction may be limited or is silent on a particular matter, the state and federal legislatures are able to legislate to remedy deficiencies with legislation.
Considering the majority the government enjoys in parliament, it is not difficult for it to pass legislation to assist the Syariah courts fill in any gaps in its authority and powers in the existing legislation.
THE CHALLENGE TO SECULARISM THE RISE OF THEOCRACY-NOT BY MUSLIMS ALONE
What is not controverted in the facts of this particular case is, that the couple separated then divorced and that the husband took the youngest child with him defying a secular court order to return her to the mother. In the process the husband achieved what many may see as an unfair advantage over his wife in the custody battle by converting his family sans his wife to the religion of Islam.
An important point to note here is that by the act of converting the children and himself to Islam, K. Patmanathan aka Riduan ensured his former wife Indira Gandhi and any rights she may have claimed under the secular civil jurisdiction was necessarily lost or excised from the jurisdiction of the Syariah court.
Riduan’s and the children’s interests by their conversion, then took precedence over any decision or claim by Indira in the secular courts in a nation where Islam is the official religion. Islam is also the largest religion in Malaysia. It is also the only religion that enjoys the exclusive protections under the constitution of the King, the legislature and the Sultans of each of Malaysia’s states. Islam also is the religion of the majority.
The Malays as Muslims are now seeking to re assert their primacy as a people and as a culture. That necessarily involves reclaiming their hereditary and natural rights, with all its attendant powers and authority, in what Malay Muslims have long believed secularism has denied them.
The undercurrent of mistrust between Malaysia’s Muslims and non Muslims was elevated in recent times when Christians breached an age old constitutional convention, requiring non Muslims to refrain from proselytizing to Muslims, converting them to other religions.
JUDICIAL DECISIONS ONLY APPRECIATED WHEN ISLAMIC CODES ARE SUPPRESSED- SECULARISM A ONE WAY STREET
The much publicized conversion of Muslim woman Lina Joy to Catholicism amongst many others which has gone largely unreported and carried out in secret by churches, immediately springs to mind as examples of unconstitutional encroachment into Islam by secularists.
The 1989 conversion of Jamaludin bin Othman and a group of other Muslim Malays although initially charged under the ISA was overturned by the Supreme court of Malaysia. The government of the day discouraged public discussion of the matter for the obvious reasons of public security and the disturbances it would trigger. The Malays although not pleased with the secular courts decision in Jamaludin bin Othman held back their anger.
Later when the decision in Halimahtussadiah vs the Public Service was decided in favour of the Public Service, although somewhat disparaged by the double standards of that decision, the Muslims were coming to terms with the fact that their acceptance of secularism was not appreciated or reciprocated by secularists in the non Muslim communities.
Adding to the volatility of this situation the Catholic church demanded the right to use the word ‘Allah’ in a provocative display of religious intolerance and chauvinism. A restive and irritated Muslim community demanded a prohibition on use of the word Allah by non Muslims. The Muslims perceived the use of the word Allah by Catholics as a breach of the so called ‘social contract’ and an attempt to confuse, proselytize and convert Muslims.
THE LINA JOY CONTROVERSY-CONVERSION, RE CONVERSION, RENOUNCING RELIGION AND APOSTASY-WHOSE BUSINESS?
The National Registration Department’s victory in the Federal Court not to endorse Lina Joy’s conversion to Catholicism in her national identity card placed Lina Joy’s case squarely into Syariah territory. The secularists saw red and an unconstitutional hand behind that decision. It was in fact a constitutional matter that concerned an individuals right to freedom of religion and worship. The opposition and pro Lina Joy lobby fought it as a matter of administrative action and rightfully lost that battle.
The secularists argued that as Lina Joy was now a Catholic, the matter no longer belonged in the jurisdiction of the Syariah courts. What they failed to recognize is that apostasy in Islamic jurisprudence is a religious matter and therefore a matter for the Syariah courts to deal with.
The Federal Court by a 2 to 1 majority decided that apostasy in Islam is a matter for the Syariah courts to deal with in Lina Joy’s case. Accordingly it decided the matter on the basis of its religious overtones .
Indira Gandhi’s problems arose it appears when the words “re conversion” and “renouncing” Islam was added to the sub text of her claims in her matter. The pre emption of apostasy may have derailed her chances of gaining access to her daughter it appears.
WHAT DOES UNILATERAL MEAN IN THIS CONTEXT
The term “unilateral conversion” raised in the context of this particular case suggests that the word unilateral is confined or ought to be confined to the definition of a single individual undertaking something.
That narrow definition for convenience, fails to consider that the institution of marriage joins two parties into one entity in which, the differences between the parties (especially in a Vedic marriage promise) when solemnized by marriage make the two parties by agreement into one.
Their decisions are then as man and wife. Their decisions become unilateral in most respects concerning the marriage and the children till it is dissolved.
The Hindu (Vedic) marriage is a patrimonial affair in which the decisions of the male prevails on behalf of the entity. This position is no different in marriages solemnized under Christian, Islamic of Jewish traditions.
The fact the children were minors at the time of conversion is relevant here. Under the common law and legislation, children have no legal capacity. It is always a parent who makes that choice as to what religion the child is burdened for in life. That could be a single parent, one parent or both in a more harmonious marriage or union.
WHERE IS THE VICE IN A CONVERSION BETWEEN BELIEVERS ANYWAY?
Following the dissolution of their marriage, Patmanathan aka Riduan appears to have taken refuge in another set of rules to his advantage. Syariah. This gave him and his children an advantage over Indira and her claims.
The problem here is with dealing with the reality of the two parallel civil systems; Syariah on the one hand and the ‘secular’ civil courts on the other.
Her marriage to Patmanathan is irreconcilably over. Her children are likely to be raised in a casteless community whatever the shortcomings of Islam may be. They will have open to them greater opportunities, the MIC or Hindraf and the DAP who now seek to interplead have never ever offered her or her community. The only exceptions to the conduct of these interpleaders has been to recruit and recognize as equals those upper caste Brahmins and middle class elites.
Indira Gandhi’s concerns and focus should have been that her children are accessible to her instead of allowing her lawyers and the media to conduct a trial by media against Islam and the Syariah courts.