MAY 7 — Much has been said about this case. I have been quoted twice.
The first quote agrees with the shariah court’s decision, the second does not. Confusion? Most definitely, but not on my part, I hope!
Given the intricacies of the case, the confusion is quite understandable.
However first I need to clarify, the shariah court’s judgement or decision was never discussed. When I was first quoted saying I agreed, I objected. I was then quoted as having said I disagreed! I objected as it was never specifically discussed or referred to. As such agreement or disagreement was never the issue. Anyway, the problem runs deeper than that.
The problem lies in a situation where the two court systems do not talk to one another as though they exist in two different worlds.
Problems involving a Muslim and a non-Muslim are then heard separately and two pronouncements are achieved, each then vying for supremacy. Is there a problem for these two institutions to talk to one another and coordinate in the interests of justice? Are we living in two different worlds or two different countries thousands of miles apart?
I for one do not see the problem for interaction and I definitely see the need.
Even in the times of the Prophet (MPBUH) the Prophet himself would meet with the Jewish scholars in Medina and discussed with them issues of theology and law. Said Ramadan in his book, ‘Islamic Law – Its scope and Equity’ wrote, “Ibn Hisham recorded that the Bayt Al-Midras was an active educational centre for the Jews of Medina during the lifetime of the Prophet. He even used to visit it and answered many questions on Islam.
“When a Jew and Jewess were brought before him in a case of adultery, he called on the Rabbis of the Bayt Al-Midras to consult their knowledge of the Torah for the punishment applicable in the case”.
Living under one leadership it was impossible for there not to be any form of interaction between the two communities. Yet here in Malaysia, under the leadership of Umno/BN, we have a dual system but the two do not talk to one another. It maybe alright if there are no common issues but surely cases like this has happened frequently enough for us to understand the need for such interaction. I am sure the learned personalities who head these institutions are more than capable of finding a just solution if given the chance.
The problem, I believe, is that the Umno/BN government is unwilling to allow such interaction. Believing in their own misconceptions, particularly about Islam and Islamic law, they assume that no common solution can be found and as such have taken it upon themselves to decide for everyone.
A decision by the Cabinet denies the courts, be it shariah or civil, its rightful role. It denied at least one parent his or her right and by so doing, denies the children their rights as well. I disagree with the decision by the Cabinet for these reasons. It short-circuits the process and like all short circuits, gives rise to bigger problems.
In dealing with this issue and those like it, which is not as numerous as some may think given the publicity accorded to it and it’s sensitive nature, we should return to basic principles. The first basic principle is the principle of justice.
The Principle of Justice
As a Muslim, I know that the Islamic courts are supposed to judge justly between the parties concerned, even if one party is Muslim and the other non-Muslim.
Justice is a pivotal principle in the message of Islam. The Quran says in Surah An-Nisaa’ or ‘The Women’ verse 58 : “….and when you judge between men, judge with justice…”.
The Arabic word used is ‘An-Naas’ or men or more correctly ‘people’ and it includes both Muslims and non-Muslims as well as male and female.
Also in Surah Al-Maidah (The Tablespread), in verse 8 Allah says : “…be steadfast for the sake of Allah, being witnesses for justice. And let not your enmity towards a people lead you to act unjustly. Be just as it is closer to being God-fearing…”
Here the warning against being unjust against any particular community, be they Muslim or otherwise is clear. Clearer still is the equating of justice to being God-fearing.
Given the above, the Islamic courts are expected to act justly by acknowledging the rights of both parents over the children. These rights are not recognised by the Cabinet short-circuit which cancels all claims by the parent who converts. Does conversion mean the nullification of these rights? I don’t think so. No, I know it doesn’t..
Islamic law recognises the rights of both parents and although a divorce occurs, plus a conversion, these rights are still intact. The Islamic courts are then to find a judgement which would recognise the rights of both parties and give justice to them both.
The second basic principle is that religion is a matter of belief and conviction resulting from divine guidance. In Islam we call this divine guidance “Hedayah”.
The question of Hedayah
The Quran says in Surah Yunus or Jonah verse 99;
“And if your Lord had enforced His will, surely all who are on the earth would have believed (in Islam) together. Will you then use force on men (An-Naas) in order that they become believers? And no soul can believe except by the permission of Allah and He casts humiliation upon those who do not use their powers of reasoning.”
Those who do not use their powers of reasoning also include those who wish to forcefully convert other people.
Given that religion is a question of Hedayah or Divine Guidance and cannot be forced unto an individual, the best that one can do is to present one’s religion as convincingly as is possible so as to influence the other party. The rest is in the hands of God.
Even the Holy Prophet (MPBUH) adhered to this principle when he had to surrender Abu Jandal to the non-believers of Mecca due to an agreement signed prior to Abu Jandal’s migration to Medina. The Prophet said, “Oh Abu Jandal, persevere and put trust in Allah! Allah will surely find a way out for you and those who are oppressed like you. We have signed a peace treaty with the Quraish. It is imperative that we fulfil the terms of the agreement which was made in the name of Allah and we cannot commit treachery towards them!”
It was a difficult decision but one based on the belief that faith cannot be forced unto someone nor can one be forced into disbelief.
The surrender of Abu Jandal was even more difficult as Abu Jandal was an adult Muslim, converting out of his own free will but such were the circumstances then. And as it turned out Abu Jandal persevered and remained a Muslim even though he was tortured by the Meccans.
The need for Ijtihad
It should be clear to all who study Islam or wish to understand Islam that Islamic law is made up of laws which are divine and as such permanent as well as laws which are opinions expoused by learned jurists. The jurists differ on matters which are of the second category, thus the reason for the existence of the various schools of Islamic jurisprudence.
An example of a difference of opinion between the companions of the Prophet is quoted by Said Ramadan in the above mentioned book. A case was judged by Ali and Zaid, both senior companions of the Prophet (MPBUH). Umar asked the litigant on the judgement given. When the man told him Umar said, “Had I been the judge, I would have decided differently”.
The man then asked, “Why then do you not enforce your decision, you being the Caliph?”. Umar answered, “Had it been a decision based on a specific ordinance of the Quran or the ‘Sunnah’ (The sayings and deeds of the Holy Prophet) I would do so but here it is a matter of opinion and thus we are all equal”.
‘Opinion’ is derived by a process termed according to Islamic juristic terminology as ‘Ijtihad’ or the striving for a solution or decision based on principles derived from the Quran and the Sunnah.
The justification for its use is the discussion between the Prophet and Muadh Bin Jabal on the eve of the latter’s departure to Yemen where he was assigned as a judge. The Prophet asked Muadh, “What will you judge by?” Muadh replied “According to the Quran”.
“What if you do not find it therein?” asked the Prophet. “Then according to the Sunnah of the Prophet”, replied Muadh. “And if you do not find it therein”, asked the Prophet again. “Then I will do Ijtihad (exert myself to form an own judgement which conforms to the objectives of the two initial sources)”, replied Muadh. Thereupon the Prophet said : “Praise be to God who has guided the messenger of His Prophet to that which pleases His Prophet.”
There is a tendency for the Islamic Court to simplify the problem of giving judgement by refering to judgements made from another era and implement it lock, stock and barrel, in our times. This may be acceptable in some of the cases but definitely not all.
This comes from their unwillingness to partake in ‘Ijtihad’ whereas even in the case of the Shafiite school of Islamic Jurisprudence, it is acknowledged by the master himself, meaning Imam Shafii (May God be pleased with him), that juristic opinion can change due to different circumstances and conditions.
This is evident from the existence of his ‘Qaul Qadim’ or ‘early opinion’ and ‘Qaul Jadid’ or new opinion.
When asked about the two Shafii clarified saying that the earlier opinion was based on what he saw then and the new opinion is based on what he sees now.
It is my humble opinion that judgements made in the times of the Abbassid Caliphate, though just and prudent at its time, should not be ‘copied’ without first confirming that the justice intended by its pronouncement is still achieved under our current circumstances when such judgement is implemented.
In other words, our Islamic Jurists of today should not shun nor fear the practice of Ijtihad but should on the contrary revive its practice and fulfill the basic objectives of the Shariah, namely justice.
Conclusion
Based on the two very basic principles and the principle of Ijtihad above, I would venture to say that the case should be handled as follows.
The question of custody be decided in the manner it is decided in any other case. The religion of both parents is put aside when making this decision.
The rights of both parents to teach their children their respective religion is acknowledged and the court is to ensure that both parents are to provide their fullest cooperation in this matter.
The children then decide for themselves their religion of choice when they come of age.
I hasten to add that this is my personal opinion and am willing to stand corrected should what is proposed contradicts the two basic principles mentioned earlier. I am the first to acknowledge that I am not qualified to undertake such a decision but I present the above so as to initiate the necessary discussion on the matter.
For Muslims who wish to see the day when Islamic Law becomes the law of the land, as I do, our ability to prove the justness of the Islamic legal system, especially towards non-Muslims is of utmost importance.
Otherwise why would they wish or allow the Islamic legal system to take precedence? As such, this basic nature of Islamic law, that which emphasises justice for all, needs to be shown and highlighted at all times.
Islamic law should not be seen as a law which discriminates in favour of the Muslims as if that is the perception, then we would have done Islam a great disservice irrespective of the short term ‘gains’ some consider we would have made.
Allah knows best.
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