The case highlights conflicts within Malaysia's dual track justice system. Islamic laws only apply to Muslims in personal matters. Non-Muslims are covered under civil laws. Rights groups have criticised the Federal Court for delaying its decision in this landmark case. They say overlaps between the two legal systems need to be addressed urgently.For more on Malaysia's Islamic Courts, check out Michael Peletz' Islamic Modern.
Critics agree that much of Southeast Asia desperately needs judicial reform and rule of law. Yet, there is remarkably little comparative scholarship on law and legal institutions in the region. In this blog, I'll follow constitutional developments in Brunei, Burma (Myanmar), Cambodia, East Timor, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam, as well as the Association of Southeast Asian Nations (ASEAN).
Monday, May 3, 2010
Dual Track Justice
Here's an interesting case from Malaysia: in a custody dispute, the Islamic court awarded a couple's children to the Muslim father, while the civil courts awarded them to the Hindu mother. The case is now at the Federal Court (Malaysia's highest court). Here is an enlightening except from the BBC article:
Subscribe to:
Post Comments (Atom)
Hey Dom,
ReplyDeleteCorrect me if I am wrong but don't the Islamic courts only have authority if both relevant parties are Muslims? Doesn't that mean the Islamic court had no authority to hear this matter in the first place?
That's a large reason why the High Court overturned the Syariah Court opinion and will probably an issue that'll come up on appeal.
ReplyDeleteThere seem to be a few issues at play. The father converted the kids to Islam without informing his wife. One of the central questions in the case is whether that is legal (one law seems to permit it, another one not). The Syariah Court has jurisdiction over declaring the children Muslims for legal purposes (as in apostasy cases).
Then the issue you raise - about the court's jurisdiction over the non-Muslim wife - is frankly a key one. Malaysian jurisdictional rules are a mess. Usually, the Syariah Court doesn't have jurisdiction over non-Muslims, but there are exceptions. It seems in this case that the wife might not have been actively litigating in the Syariah Court (one article says the husband "quietly" obtained the custody decree behind her back), so she probably didn't have a chance to raise the jurisdictional issue in court. However, the Syariah Court (as many courts are prone to do) probably saw an opportunity to try to expand jurisdiction.
FInally, I'll note that the Syariah Court is a state-level court, while the civil courts are federal, so there is that dynamic as well. For those of you who know Malaysia, Perak is a PAS stronghold (and was until recently under PR control).