10th August, 2015
A case involving the constitutional position of sharia (Islamic law) courts in the Malaysian legal system could strengthen the power of the courts to block Malay conversions from Islam, according to US-based persecuted church news service Morning Star News.
In an op-ed, the organisation says that in a potentially "landmark case", due to be heard on 13th August, the Federal Territory Islamic Council claims that sharia courts are separate from and not subject to Malaysia”s federal court system.
Noting that Malaysia has two legal systems – the sharia courts and the federal courts. The sharia courts – which settle family matters (such as divorces), inheritance questions and violations of the pillars of Islam, which can impose limited punishments (six months” imprisonment and fines up to about $US1,300) and which apply exclusively to Muslims (only Muslims can bring cases to these courts and until 2006 only Muslims testified in them) – and federal courts, Morning Star News reports that the case arose after Christian lawyer Victoria Martin noticed that it was difficult to resolve interfaith disputes in sharia courts.
Obtaining a diploma in sharia from the International Islamic University Malaysia, in August, 2009, she applied to the Federal Territory Islamic Council (Majilis Agama Islam Wilayah Persekutuan, or MAIWP) for permission to practice in sharia court. But Morning Star News says her application was not processed because she was not a Muslim; rule 10 of the Sharia Court Rules Act (1993) states that sharia lawyers must be Muslims (by contrast, Morning Star News says Singapore, which has a similar legal heritage, allows non-Muslims to practice in sharia courts).
In October, 2009, Martin sued in Malaysian court requesting a judicial review of the rejection of her application. She lost, but later she won on appeal with the appeals court citing section 59(1) of the Sharia Court Rules Act (1993), which states that anyone with “sufficient knowledge of Islamic law” may be an advocate (attorney) in sharia courts.
Both the Malaysian Attorney General and the MAIWP have challenged Martin”s argument that her constitutional rights have been denied and it is that case which will be heard in the Malaysian Federal Court on 13th August.
Morning Star News says the case will pit constitutional rights against sharia and says that a decision for Martin would affirm the supremacy of the Federal Constitution but that a decision against her "would mean that Islamic laws supersede federal laws".
"This would place the sharia courts beyond the reach of the federal courts," the organisation says, a situation which immediately affect all of Malaysia’s 15 million ethnic Malays who are all defined in the constitution as Muslims.
"As ‘sons of the soil’ (bumiputeras), they are given special affirmative action types of privileges," Morning Star News says. "One consequence of bumiputera status is that it is not possible for a Malay to convert to any other religion without changing ethnic status. Only sharia courts can change a person”s religious (and ethnic) status. A decision against Martin in the case thus would strengthen the sharia courts” power to impede Malays converting to other faiths."
"In short, the Martin case will be critical in defining the position of the sharia courts with respect to the federal court system. The placement of one system over the other will rest on the decision."
– DAVID ADAMS
