In Malaysia, where there exists a dual legal system of both secular and sharia courts, Muslim spouses benefit from a distinct advantage in custody trials. Late last night a bill that was supposed to address the advantage was passed – minus the clause regarding these disputes
In the early hours of Thursday morning, the Malaysian House of Representatives passed an amendment to the country’s marriage and divorce law in a move that is making waves for what it fails to include rather than what it does.
With some sectors of Malaysian society becoming increasingly polarised along ethnic and religious lines, legal disputes between parents regarding the religion of their children can be a source of growing tension.
While Malaysia’s 1957 constitution guarantees religious freedom for all citizens, the state religion is Islam, and Muslim citizens are afforded a dual legal system in which they can enter either secular or sharia courts. When it comes to family disputes, sharia courts handle Muslim citizens and secular courts handle non-Muslims.
Non-Muslims are barred from entering sharia courts and thus not afforded the opportunity to argue their case, putting them at an obvious legal disadvantage. In disputes between religiously mixed couples, this usually results in the Muslim spouse being awarded custody, especially if the children are Muslim as well, and few are willing to challenge the decisions of sharia courts.
“If you rule against the sharia court, you can be accused by the fundamentalists of being a bad Muslim,” James Chin, director of the Asia Institute at the University of Tasmania, told Southeast Asia Globe.
This, therefore, offers a legal incentive for those willing to convert to Islam in order to win custody of their children. Their case grows even stronger if they convert their children to Islam as well, and while sharia courts recognise the right of a sole spouse to convert their children, secular courts dictate that both parents must agree.
Non-Muslims have criticised the Malay Muslim-dominated government for not addressing such discrepancies that inevitably arise when the nation’s two legal systems come into conflict.
While in 2009 the government recognised that these unilateral conversions of children to Islam should be halted immediately, it wasn’t until 2016 that a bill came to the table that would require consent from both parents on the matter.
At the time, Malaysian lawyer Fahri Azzat said he was unsure if the bill would ever see a vote because it seemed to be “an electoral carrot for the non-Muslims to support UMNO for the next elections”.
The recently passed amendment most notably left out one part – Section 88A of the 2016 version, which contained the language that would have banned unilateral conversions of children. The decision to remove this section drew criticism from a plethora of groups including the ruling party, Barisan Nasional.
A minister in the prime minister’s department, Azalina Othman Said, said the bill instead encourages Muslims to take divorce trials to civil courts, according to the Malaysian Insight.
Azalina added that the section was removed so the bill would not be in conflict with provisions under the Federal Constitution, reported the Star Online.