Shariah Court is on par with civil court, say Muslim lawyers group

Indira Gandhi with her older children, Tevi (right) and Karan. Her ex-husband is still keeping custody of her youngest child, Prisana, in contempt of a 2010 High Court ruling. - The Malaysian Insider pic, April 9, 2014.The Shariah Court is on par with the civil court under amendments to Article 121 (1A) of the Federal Constitution in June 1988, the Muslim Lawyers' Association of Malaysia told the Ipoh High Court today.

Lawyer Mohamed Hanif Khatri Abdulla (crt) said this was supported by the Federal Court which had made judicial pronouncements on three occasions between 1992 and 2008.

"To suggest that the High Court has supervisory role over the Shariah Court is an affront to the purpose and intent of Article 121 (1A)," he said.

The association is appearing as amicus curae (friend of the court) on the invitation of High Court judge Lee Swee Seng to assist him in making a ruling since the civil court and Shariah Court have issued separate custody orders for three underaged children.

Hanif was submitting in a contempt proceeding brought by kindergarten teacher M. Indira Gandhi against her estranged husband who had converted to Islam.

He subsequently converted the children – Tevi Darsiny, 16, Karan Dinish, 15, and Prasana Diksa, 3  – and obtained custody from the Shariah Court in September 2009.

Indira obtained her custody order from the High Court in 2010.

However, her husband, Muhammad Ridzuan Abdullah, refused to return their youngest child, Prasana Diksa (Ummu Habibah), to Indira.

Ridzuan, who was known as K. Patmanathan, has been holding on to Prisana Diksa since April 2009 when she was 11 months old.

Last July 25, Lee, in a landmark decision, quashed the certificates of conversion of the three children and ruled that the certificates were null and void because they were unconstitutional.

Under the Perak state enactment, it was a statutory requirement for a child to be present before a certificate of conversion could be issued.

He also cited provisions under the Perak Shariah law, where the children must be present to utter the affirmation of faith (Dua Kalimah Syahadah).

Indira married the then K. Patmanathan (Muhammad Riduan), 20 years ago according to Hindu rites.

Hanif said Islam, under Article 3 of the Constitution, was the official religion of the Federation  and was above all other religions which were allowed to be practised in peace in the country.

"The word Islam is not restricted to ritual only but must be interpreted as a way of life. So  Article 3 imposed an obligation on the Federation to protect, defend and safeguard Islam," he added.

In the light of judicial pronouncements and special position of Islam, he said it was beyond doubt that the religion was a basic structure in the Federal Constitution and could not be moved or altered.

He said another basic structure of the Constitution was that there was a separation of power between the Federation and the states to enact laws as provided under the ninth schedule of the supreme law.

"It is crystal clear that on matters pertaining under the state list, the Federal government cannot  legislate on subjects relating to Islam," he said.

He also said the Guardianship of Infants Act 1961 and the Law Reform (Marriage and Divorce) Act 1976 were not applicable.

He said under the Law Reform Act, Indira Gandhi could only dissolve her marriage with her spouse and the civil court had no jurisdiction to give her custody of the children nor can it hold the estranged husband to being in contempt of court.

Lee adjourned hearing to April 16.