Press Statement
Constitutional Compliance is the Paramount Consideration
28 March 2007

Women’s Aid Organisation (WAO) is troubled by the viewpoints expressed recently by the Minister of Women, Family and Community Development, as well as the Trengganu and Perlis Muftis and Syariah Lawyers Association adviser, indicating that non-Muslims such as R. Subashini can be required to seek legal redress in syariah courts.

Although their focus on justice is reassuring, it is unjust, as a starting point, to oblige non-Muslims to subject themselves to syariah courts that apply religious laws when those individuals do not profess that religion. It is also contrary to the Federal Constitution, the supreme law in Malaysia, and the guarantees enshrined in it.

We therefore echo the chorus of opinion that has emphasised that the rule of law must prevail. Specifically, irrespective of the syariah courts’ capability to dispense justice, the Federal Constitution explicitly stipulates that syariah courts can only exercise jurisdiction over persons who profess Islam as their religion, and the judiciary must continue to uphold this guarantee. In addition, the Constitution does not permit Islamic laws to be implemented on non-Muslims. For example, a custody order issued by a syariah court in favour of a converted father cannot bind, i.e. cannot have legal effect, on the non-converting mother.

Within our Constitutional framework, there is no option for non-Muslims to seek legal remedy in the syariah courts, even if they wish to do so. It is all the more alarming when the civil courts oblige them to do so as the sole means to obtain legal redress for their grievances. The crux of the issue is Constitutional compliance, which must not be deflected by arguments about the status of the civil versus syariah courts, that justice can be obtained from the syariah courts or that non-Muslims should learn to accept syariah law.

We urge the government to give effect to the commitment it expressed at its UN-level dialogue with the CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) Committee in May 2006. In response to questions regarding the legal remedy available to women like Subashini, the Malaysian delegate stated that “the Government, recognizing the sensitivity and complexity of matters relating to conversion and in view of the sentiments expressed by various groups in that regard, was taking steps to ensure a holistic approach to the issue in order to avoid dissatisfaction within the Malaysian community.” We call on the government to give urgent attention to resolving this matter.

Women’s groups have been receiving requests for assistance from non-Muslim women whose spouses have converted, or are planning to convert, to Islam. In response to their concerns, WAO and other members of the coalition of women’s groups known as JAG (Joint Action Group on Gender Equality), have prepared a memorandum -- entitled “Safeguard Rights Of Wives and Children Upon Conversion Of Husbands To Islam” -- that calls for a review of the laws relating to conversions of non-Muslim spouses to Islam.

In the memorandum, we urge that laws be reformed, where necessary, to ensure that the rights that non-converting family members (especially spouses and children) have under civil laws are preserved. Regardless of one spouse’s conversion, all duties and obligations arising out of the marriage must be settled according to civil law, and not state Islamic law enactments, since the marriage was solemnised or registered under civil law. Furthermore, legislation must be adopted to specify that only the civil courts have jurisdiction to hear any matter arising out of such a marriage, including jurisdiction over the converting spouse.

We urge that all Malaysians’ legitimate expectations be safeguarded and our existing rights preserved. It is unfair and retrogressive when a woman loses the rights she had upon marriage as a result of her spouse’s change of faith. It is our hope that due consideration will be given to the concerns and recommendations outlined in our memorandum.

Chin Oy Sim
Programme Officer

Related News:

• Convert lodges police report against Subashini, others (The Sun, 3 April 2007)
• Subashini case: When judges fail justice (Malaysiakini, 30 March 2007)
• Subashini granted temporary injunction to stop husband from syariah court action (The Sun, 30 March 07)
• Justice in court the bigger concern: Shahrizat (The Sun, 26 March 2007)
• Bar Council: Syariah Court only for Muslims (The Sun, 19 March 2007)
• Convert’s wife loses appeal in 2-1 judgment (The Star, 14 March 2007)
• Muslim convert to resume maintenance payment to ex-wife (The Sun, 13 February 2007)

Related Resources:

• Press Statement: Article 11 Video Series Launch
• Press Statement : Protect the Rights of Wives and Children Upon Conversion of Husbands to Islam
• Memorandum: Safeguard the Rights of Wives and Children Upon Husband's Conversion to Islam