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 SIPDIS C O R R E C E D COPY - ADD ADDRESSEE SIPDIS 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 KUALA LUMP 00000705 001.3 OF 003 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 KUALA LUMP 00000705 002.4 OF 003 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 KUALA LUMP 00000705 003.3 OF 003 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