HONEY, I CONVERTED THE KIDS: MALAYSIA'S APPEALS

C O N F I D E N T I A L SECTION 01 OF 03 KUALA LUMPUR 000705

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C O R R E C E D COPY - ADD ADDRESSEE

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E.O. 12958: DECL: 04/06/2017
TAGS: PHUM PREL PGOV KDEM KWMN PINR SOCI KISL MY
SUBJECT: HONEY, I CONVERTED THE KIDS: MALAYSIA'S APPEALS
COURT SUPPORTS SHARI'A JURISDICTION IN INTER-FAITH CIVIL
DISPUTE

REF: A. 06 KUALA LUMPUR 680


B. 05 KUALA LUMPUR 4424

C. 05 KUALA LUMPUR 3784

D. KUALA LUMPUR 560

E. KUALA LUMPUR 232

F. 06 KUALA LUMPUR 1636

G. 06 KUALA LUMPUR 1516

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Classified By: Political Section Chief Mark D. Clark for reasons 1.4 (b
) and (d).

Summary
--------------


1. (C) In the latest high-profile legal battle between a
Muslim and non-Muslim involving civil law, Malaysia's secular
Court of Appeal reached a decision that supports Shari'a
court jurisdiction over a non-Muslim. On March 13, the Court
of Appeal upheld a High Court ruling that would allow a
Muslim convert to obtain custody of under aged children from
a non-Muslim spouse and unilaterally convert the children to
Islam. Following condemnation of the rulings by non-Muslim
leaders, the Court of Appeal agreed to stay the execution of
its ruling until the non-Muslim spouse exhausts her appeal
before the Federal Court (Malaysia's apex court). Most
secular legal experts believe that both the constitution and
Malaysian case law effectively bar the Shari'a courts from
claiming jurisdiction over non-Muslims. The latest court
ruling feeds the concerns of the country's substantial
non-Muslim minorities over the gradual Islamization of
Malaysia. Non-Muslims have been consistently defeated in the
High Court and Court of Appeal in proceedings that pitted
Muslims versus non-Muslims on matters of apostasy, child
custody and child conversion. The cases have been elevated
to the Federal Court, which has thus far issued no rulings on
them. We believe it likely that the Federal Court has
delayed its rulings on at least three other similar religious
cases due to their political sensitivity. In the run-up to
the next general election, the GOM has little to gain from
Federal Court decisions on such highly emotive and divisive
matters. End Summary.

Conversion Sparks Inter-Faith Custody Battle
--------------


2. (U) In mid-2006, without the prior knowledge of his
28-year-old Hindu wife, Subashini Rajasingam, a Hindu man
converted to Islam, initiated divorce proceedings in a
Shari'a court, applied in the Shari'a court for custody of
the couple's two sons (aged three and one),and converted the
elder son to Islam. Upon learning of her husband's actions,
Subashini applied to the High Court to stop her husband's
custody and divorce petitions in the Shari'a court and
prevent him from converting their youngest son to Islam. She
claimed the Shari'a courts had no jurisdiction over her or
her remaining Hindu child. She then filed for divorce in the
civil courts.

Civil Courts Grant Broad Family Powers to Muslim Converts
-------------- --------------


3. (U) On September 25, 2006, the Malaysian High Court ruled
2-1 in favor of Subashini's husband, stating he was legally
entitled to unilaterally dissolve his civil marriage in a
Shari'a court, as well as obtain custody of the couple's
under aged children and convert them to Islam over the
objections of his non-Muslim spouse. The High Court
instructed Subashini to pursue her claims in the Shari'a
court system, and the court granted an interim injunction,
pending Subashini's elevation of her case to the Court of
Appeal. On March 13, the Court of Appeal dismissed
Subashini's appeal in a 2-1 ruling. Writing for the
majority, Court of Appeal Justice Hasan Lah wrote that
Subashini should apply to the Shari'a Court of Appeal to
overturn the lower Shari'a court rulings against her. In his
highly controversial text, Lah wrote that the civil and
Shari'a courts "must be regarded as having the same standing
in this country." Several non-Muslim lawyers told us they
deemed Lah's legal reasoning unconstitutional. (Note: The
latest rulings come on the heels of other controversial
secular court rulings that ceded jurisdiction from the civil
to the Shari'a courts in religious conversion and child
custody cases involving Muslims and non-Muslims. Three of
these cases remain pending at the Federal Court (refs A, B
and C). End note.)


4. (U) In his written dissent on the Subashini ruling, Court
of Appeal Justice Gopal Sri Ram (the only non-Muslim on the
panel of three judges deciding the case) stated, "the Shari'a
court only has jurisdiction in civil matters where both

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parties are Muslims. To interpret this any other way would
produce a manifest absurdity and an injustice to non-Muslims.
Therefore, the Shari'a court here should have no
jurisdiction, because Subashini is a Hindu."

Public Reaction
--------------


5. (U) Women's Minister Shahrizat Abdul Jalil, a lawyer,
publicly commented on the courts' majority decisions in the
Subashini case. She said, "It does not matter whether the
cases go to the civil or Shari'a courts, the important thing
for us in the Ministry is that they get justice." The
reportedly moderate young mufti of Perlis, Asri Zainul Abidin
(see recent profile, ref D),supported the Shari'a Lawyers
Association press release stating that "non-Muslims should
not fear appearing before the Shari'a court." Not all
Malay/Muslim public views supported the civil courts'
decisions. In an editorial published in a mainstream
newspaper (The Sun) on March 27, well-known Muslim lawyer and
UMNO politician Zaid Ibrahim stated, "Muslims can do away
with the civil courts if they wish. They can seek changes to
the law to incorporate criminal law, contract law, property
law, etc. as part of Shari'a law, if that is what they want.
What Muslims cannot do is to expect non-Muslims to submit to
the Shari'a court."

Weakened Secular Courts Worrisome to Non-Muslims
-------------- ---


6. (SBU) The Bar Council, non-Muslim NGOs and several leading
opposition politicians expressed their dismay with the
Subashini rulings. They cited Malaysia's constitution and
previous case law that limit the jurisdiction of the Shari'a
courts to Muslims only. The Bar Council noted that
Subishini, as a non-Muslim, is legally precluded from
submitting to the jurisdiction of the Shari'a court. The
country's leading non-Muslim religious grouping, the
Malaysian Consultative Council of Buddhism, Christianity,
Hinduism, Sikhism and Taoism (MCCBCHST) issued a press
release on March 23 that cited "growing discomfort amongst
the non-Muslim citizens of Malaysia, many of whom feel that
the judiciary is failing in its constitutional duty to ensure
equal protection of the law for all Malaysians." Those
sentiments mirror what MCCBCHST leaders told us during a
recent luncheon hosted by the Ambassador (ref E).


7. (U) Following this public outcry by non-Muslim leaders
over the Subashini rulings, the Court of Appeal on March 30
granted Subashini an interim injunction that prevented her
husband from finalizing his case in the Shari'a court system.
The injunction was granted to allow Subashini's lawyers to
file an appeal with the Federal Court. (Note: Subashini's
high profile legal team includes Malik Imtiaz. He was the
target of a well-publicized death threat in August 2006 (ref
F). Imtiaz helped organize and lead a highly controversial
NGO in 2006, known locally as "Article 11" (based on the
section of the constitution dealing with religious freedom).
End note.)

Yet Another Case for the Federal Court?
--------------


8. (U) On April 5, opposition party DAP's Chairman, Karpal
Singh, urged the Federal Court to speed its decisions on the
three controversial religious conversion cases now before it.
He also mentioned two additional religious conversion cases
not yet covered in the media. One of those cases involves a
29 year old Hindu woman, Revathi, born to ethnic Indian
parents who had converted to Islam. Although registered as a
Muslim by her parents, Revathi was brought up as a Hindu by
her grandmother. She filed a statutory declaration on March
21, 2001 that identified herself as a Hindu. She then
married and gave birth to a daughter on December 19, 2005 in
Malacca. Two days later, three men and a woman from the
Malacca Islamic Religious Department came and demanded that
she relinquish custody of her newborn daughter to them.
Revathi refused. In January 2007, she was taken into custody
under a Shari'a court order. She is currently undergoing 100
days of "rehabilitation" by Islamic religious authorities,
and is expected to be released on April 18. Revathi's 15
month old daughter has been placed by Islamic religious
authorities into the custody of Revathi's Muslim mother.
According to Singh, the DAP has submitted a memorandum on the
matter to the PM.

Comment
--------------


9. (C) The gradual and continued Islamization of Malaysia has

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increased the discomfort of non-Muslims with regard to both
their civil and religious rights. Non-Muslim political,
legal, religious and NGO leaders have grown more adamant (at
least in private, given the PM's restrictions on public
religious debate) in calling for legal reforms to ensure
secular court dominance over Shari'a courts in civil cases
involving non-Muslims. The Federal Court has thus far not
opined on recent High Court and Court of Appeal rulings that,
unless overturned, would cede jurisdictional control from the
secular to the Shari'a courts in civil cases pitting Muslims
versus non-Muslims. We expect similar cases to pile up at
the Federal Court, until either the Court or parliament
decides to better clarify the jurisdictional boundaries.
Several Bar Council leaders told us privately that the
Federal Court has purposefully delayed its rulings on at
least three religion-based cases with far-reaching
ramifications for non-Muslims, given those cases' political
sensitivity. In the run-up to the next general election,
anticipated to occur by the first quarter of 2008, the GOM
has little to gain from Federal Court rulings on highly
emotive and potentially divisive inter-religious cases.
LAFLEUR