A fatwa does not apply to non-Muslims, just as the shariah court has no jurisdiction over them, says Dr Shad Saleem Faruqi .
KUALA LUMPUR: A law expert has questioned the rationale for deferring the tabling of amendments to a marriage and divorce law governing non-Muslims on grounds it conflicts with a fatwa (religious edict).
Dr Shad Saleem Faruqi said religious edict did not apply to non-Muslims.
“How could a fatwa apply to non-Muslims, like in amending the Law Reform (Marriage and Divorce Act)?” he asked.
He said this in his lecture titled: “Constitutional Freedom of Religion & International Perspectives” held at Universiti Malaya yesterday.
Shad’s remark was in apparent reference to the announcement by Deputy Prime Minister Ahmad Zahid Hamidi that the tabling of the amendments had been postponed to prevent any conflict with the fatwa (edict) issued on the matter, and the Federal Constitution.
Zahid had said the amendments would be submitted to the attorney-general for review with views obtained from religious experts, non-governmental organisations, political parties and individuals.
Perak Mufti Harussani Zakaria had also urged the government to defer amending the Act as the proposed changes were deemed to be in conflict with Islamic law, and seen as belittling and disrespecting Islam.
The amendments, among others, seek to bring an end to unilateral conversion of minors when one spouse converts to Islam.
Shad said shariah courts had no power to dissolve a non-Muslim marriage or decide on guardianship of infants.
He said a child could not be converted without the consent of both parents or in the absence of the minor before the religious authorities.
“It is also sinful to abuse Islam for the purpose of conversion to avoid the liability of a civil marriage,” he said in reference to the case of kindergarten teacher M Indira Gandhi, who is challenging the conversion of her three children by ex-husband Muhammad Riduan Abdullah.
Shad said it was courageous of the dissenting Court of Appeal judge Hamid Sultan Abu Backer to declare that the conversion in Indira’s case was purely an administrative matter and that the civil court could inquire into the matter.
He said it was also regrettable that superior civil courts advised non-Muslims, such as Indira, to seek remedy in the religious court.
“Jurisdiction does not come from my (aggrieved party’s) consent but from the law,” he said.
Schedule Nine under the state list of the constitution states that the shariah court only has jurisdiction over Muslims.
Justices Balia Yusof Wahi and Badariah Sahamid, who were in the majority in the Court of Appeal, said the civil court did not have the jurisdiction to hear the conversion (of Indira’s children).
Indira’s two children, Tevi Darsiny, 19, and Karan Dinish, 18, are now under her care.
In 2009, Riduan snatched Prasana Diksa, then aged 11 months, before unilaterally converting all the children in their absence.
Indira won full custody of her children in the High Court on March 11, 2010.
The Federal Court heard her appeal last November but has reserved judgment.