Introduction to Islamic Law

The concept of Reality stated by the Quran and Hadis is true, it is for one to step forward and surrender one’s will to the will of God.

It is this submission which is called “Islam”, and those who do so i.e. those who of their own free will accept God as their sovereign and surrender to his divine will and undertake to regulate their lives in accordance with his commandments are called “Muslim”.

All those who surrender to the will of God are welded into a community and that how the Muslims society comes into being. This society is the result of a deliberate choice and effort; it is the outcome of a contract which takes place between human beings and their Creator. Those who enter into this contract undertake to recognize God as their sovereign. His guidance is supreme and his injunctions are of absolute law.

Philosophical concepts of Islamic Law
i) [Surah al-Baqarah] – Any Islamic laws can only be executed after the promulgation
ii) [Surah al-Maidah] – Islam believed that whoever does anything sinful, they will be punished by God.
iii) [Surah al-Zukhruf] – Islam believed meritorious will be rewarded to posterity; criminal will be punished to posterity.
iv) Islamic law to maintain the close relationship between legislative, religious and ethics.

Punishments of Islamic Law
i)    HUDUD – for adultery, accusation, theft, robbery, apostasy, drinking alcohol and rebellion cases, offences and punishments are following the “al-Quran”, can not amend and demolish any articles of “al-Quran”.
ii)    QISAS – for murder, deliberate murder, manslaughter, and wounding cases, victims can make revenge on criminals; the punishments are making by the victims’ family.
iii)    DIYA – for murder, deliberate murder and manslaughter cases, victims’ families are allowed to kill murderers.
iv)    TAZIR – punishments are making by the civil court and Judiciary.

Objectives of punishments in Islamic Law
i)    Deterrent – to prevent repetition crime.
ii)    Retributive – Victims is allowed to revenge on criminals.
iii)    Reformative – to feel regret to the crime.
iv)    Expiatory – reparation for a wrong or injury.

 

Buddhism in Malaysia

Buddhism and defined that there are 2 main types of Buddhism i.e. Mahayana (大乘) and Hinayana (小乘).

Few things can be said with certainty about Mahayana Buddhism especially its early Indian form, other than that that the Buddhism practiced in China, Korea, Tibet, and Japan is Mahayana Buddhism. Mahayana can be described as a loosely bound bundle of many teachings, which was able to contain the various contradictions found between those differing teachings. Mahayana is a vast religious and philosophical structure. It constitutes an inclusive faith characterized by the adoption of new Mahayana Sutras, in addition to the traditional Pali canon or Aghama texts, and a shift in the basic purpose and concepts of Buddhism.

About Hinayana, Hinayana is used by Mahayanists as a name to refer variously to one or more doctrines, traditions, practitioners or thoughts that are generally concerned with the achievement of  Nirvana as an Arahant or a Pratyeka-Buddha as opposed to the achievement of liberation as a Samyaksambuddha wherein the Samyaksambuddha is deemed to operate from a basis of vowing to effect the spiritual liberation of all beings and creatures from the suffering of samsara (not just himself or a small number of others).

The development of the Buddhism in Malaysia in the aspect of temple or monastery and Buddhism organizations are as follows:

1.    The first temple in Penang is Kong Hock Keong (广福宫) which founded by a group of Hokkien and Cantonese Chinese in 18th century
2.    1891, the development of Kek Lok Si pagoda 极乐寺宝塔which completed in 1906 with 3 types of culture i.e. Thai, Myanmar and Chinese
3.    1925, the establishment of Penang Buddhism Institute 槟城佛学院 which started with the involvement in education
4.    1939, the foundation of Par Tay Institute with the strong financial support from Hu Wen Hu.
5.    1955, the formation of Malaysia Buddhism Association 马来西亚佛教总会
6.    1970, the formation of Young Buddhist Association of Malaysia 马来西亚佛教青年总会
7.    1989, the entry of Fo Guang Shan Malaysia 马来西亚佛光山总会
8.    1995, Malaysia Tzu Chi 慈济功德会founded and has actively involve in the voluntary works

 

Religious Freedom within Federal Constitution FAQ 4

FAQ on Law Reform (Marriage & Divorce) Act 1976 (as at 20 June 1991)

Question 19: What are the concerns with allowing only one parent to change the children’s religion to Islam ?

Answer: One concern is that the other parent’s equal right to guardianship is violated. Another concern is that once children are converted to Islam, they will have extreme difficulty changing to another religion if they wish to do so when they grow up.

Question 20: What if the parents do not jointly agree on the children’s religion?

Answer: The children themselves must determine their religion upon reaching 18 years of age. In the meantime, no conversion should take place.

Question 21: Who is responsible to pay maintenance for the children?

Answer: The civil court can order either parent to pay maintenance for the children. The
maintenance order can be varied as the children grown us and their needs change.

Question 22: Which court has jurisdiction over family disputes when one spouse converts to Islam?

Answer: Only the civil court should have jurisdiction since the marriage was registered under civil law.

However, recent cases have suggested that the non-converting spouse should seek relief in the Syariah court because the civil court has no jurisdiction. These decisions have made the situation unclear.

Question 23: Why are these court decisions problematic?

Answer: They are problematic because the non-converting spouse is left with no court to go for relief. This is because recent court decisions have suggested that the civil court has no jurisdiction, while the Federal Constitution clearly provides that the Syariah courts only have jurisdiction over Muslims.

Question 24: What is the Federal Constitution?

Answer: The Federal Constitution is the supreme law of the land. This means that all laws must comply with it and all Malaysians must follow it.

That is why “upholding the Constitution” is stated in the Rukunegara, and all judges and parliamentarians also take an oath to uphold it.

 

Religious Freedom within Federal Constitution FAQ 3

FAQ on Law Reform (Marriage & Divorce) Act 1976 (as at 20 June 1991)

Question 13: If a wife converts, can her disabled husband claim spousal maintenance?

Answer: Yes, Under civil law, the court can order a converting wife to pay
maintenance to a husband who is physically or mentally unable to work. This is different from state Islamic law enactments where a Muslim wife never has to pay maintenance to her Muslim husband.

Question 14: What is the difference between guardianship and custody?

Answer: Guardianship is the legal right to make decision with long-term effect in relation to the children, e.g. welfare, education and religion. Custody relates to the daily care regarding the upbringing of the children.

Question 15: When a parent converts, who should get custody of the children?

Answer: The parent who can take better care of the children should get custody.
The best interest of the child is the most important factor.

Conversion should not affect custody decision. In a recent decision, Justice Faiza Tamby Chik gave custody over 2 converted children to the nonconverting mother.

Question 16: When a parent converts, who is the guardian of the children?

Answer: Under civil law, both parents are equal guardians of the children. Conversion of one parent does not change this. Being equal guardians means that both parents must jointly agree on important decisions, including their children’s religion.

Question 17: Can the converting parent convert the children without the permission of   the other parent?

Answer: No. However, recent judgments have made the position unclear. To allow the converting parent alone to choose the children’s religion would mean depriving the other parent of her equal right to guardianship.

Question 18: Is there a way to ensure that children are converted to Islam only when both parents consent?

Answer: Yes, The state Islamic law enactments should respect the equal and joint rights of both parents. They must not allow children to be converted to Islam unless both parents consent.

 

Religious Freedom within Federal Constitution FAQ 2

FAQ on Law Reform (Marriage & Divorce) Act 1976 (as at 20 June 1991)

Question 7: Is anyone legally required to inform the convert’s family of the conversion?

Answer: No, However, the convert should be legally required to notifY his spouse (if married) and his immediate family members.

The religious authorities should be legally required to ensure that these family members are notified immediately upon conversion.

Question 8: When one spouse converts to Islam, Goes it affect the rights and responsibilities of the spouses under civil law?

Answer: No. The rights and responsibilities of the spouses continue under civil law, e.g. if the husband converts, he must still continue to support the family financially.

Question 9: Why must the rights and responsibilities of the spouses continue under civil law?

Answer: This is because the spouses agreed upon certain rights and responsibilities when they married under civil law. One spouse cannot be allowed to change the terms of the marriage contract without the other spouse’s agreement.

Question 10: What can a non-converting wife claim in a divorce?

Answer: She can claim: Maintenance for herself and the children; Custody and guardianship of the children; and Division of matrimonial assets.

Question 11: Is it true that because her husband converted, she is entitled to maintenance for only 3 months after the divorce?

Answer: Many converting husbands think so because under state Islamic law enactments where both parties are Muslims, husbands are only required to provide shelter and maintenance to their wives for 3 months after divorce.

However, the civil courts have consistently dismissed this argument because civil law applies as long as one party is non-Muslim.

Question 12: For how long is non-converting wife entitled to spousal maintenance?

Answer: Generally, she is entitled to spousal maintenance until she remarries or dies.

 

Religious Freedom within Federal Constitution FAQ

FAQ on Law Reform (Marriage & Divorce) Act 1976 (as at 20 June 1991)

Question 1:What issues arise when a non-Muslim family member convert to Islam?

Answer: They include:

• the status of his civil law marriage;
• divorce;
• maintenance;
• division of assets;
• custody and guardianship of children; and
• inheritance of assets.

Question 2: Is a civil law marriage automatically dissolved when one spouse converts to Islam?

Answer: No. Conversion to Islam, by itself, cannot dissolve a civil law marriage. Only civil courts can dissolve such marriages, not Syariah courts.

Question 3: Who can petition for divorce under civil law?

Answer: Only the non-converting spouse can apply for divorce under civil law. The law should be amended to allow either the non-converting spouse or the converting spouse to apply for divorce in the civil court.

Question 4: What happens if the non-converting spouse does not apply for divorce?

Answer: The civil marriage continues to exist.

Question 5: When a civil law marriage breaks down because one spouse converts, which law applies?

Answer: The civil law still applies because the marriage was registered under civil law. So issues of divorce, maintenances, custody and guardianship of children and division of assets must also be decided under civil law.

Question 6: Can the non-converting spouse apply for divorce immediately?

Answer: No. The divorce petition cam only be filed 3 months after the date of conversion.

 

Religion Freedom within the Federal Constitution

In recent year, there are legal events that affects and will impact each of us in the area of family, religion and constitution.

These issues, when involve converting family members to Islam, the legal rights of both converting and non-converting family members are not clear, thus causes a lot of uncertainty and conflict. Even many lawyers are confused, especially when recent judgments have been conflicting and are inconsistent with the Federal Constitution.

According to the Federal Constitution, the Civil Court must adjudicate all marriage registered under civil act i.e. The Law Reform (Marriage and Divorce) Act – not only deciding on marriage but also have to decide on divorce i.e. maintenance, inheritance, custody etc and not by the Syariah Law. Article 121(1a) provided that civil high court has no jurisdiction WITHIN the Syariah court i.e. only after when one is converted. Therefore, the non-Muslim spouse can not go to Syariah Court.

While Sec 3.3 of the Law Reform (Marriage and Divorce) Act 1976 clearly states that it does not apply to Muslims, Sec 51 is the sole clause that automatically allow divorce to be presented to court if one spouse convert to Islam BUT only after 3 month FROM the day of conversion (many things can happen in the period). This is the MAJOR problem area.

This same Sec 51 implies that the civil marriage continue to exist unless there is a petition to divorce, which caused problems e.g. Murthi case. Other cases like Lina Joy, Shamala and others also demonstrate the complicity of legal problem intertwined with religion problem.

The crucial idea is that the Federal Constitution should be the supreme law while Syariah law that only apply to Muslims should not be the basic law of the land. Meanwhile, Article 11 guarantees the freedom of choosing ones religion, applies to everyone, including the Muslim.

Despite that the judiciary has not been operating fully independently, we have to have hope in the country, and be resilient to move forward – starting by understanding the Federal Constitution – for a better tomorrow.