The Book of Prof Shad.docx

Conciliation proceedings and court intervention are

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Conciliation proceedings and court intervention are required by the law. Likewise, any move to dissolve communal relationships should be subject to some regulation. 69
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Cheque-book conversions and other forms of improper inducements should be prohibited and should be punishable. Conversions of minors should not be allowed without the consent of both parents. In the Constitution in Article 12(4) it is stated that “the religion of a person under the age of eighteen years shall be decided by his parent or guardian”. This provision has been abused by some parents who, in the midst of divorce proceedings, convert their infant children without the consent of the other parent. The word `parent’ in the singular should be interpreted as a plural. Authority for this is found in the Eleventh Schedule of the Constitution, section 2(95), that “words in the singular include the plural…” Before any conversion application is approved all affected parties must be notified and must have a legal right to be heard. To implement this proposal some hurdles will have to be overcome about the appropriate judicial forum and the jurisdiction of the courts. Syariah courts have no jurisdiction over non-Muslims. Therefore, either the matter must be committed to a civil court or to a newly created Special Court. The fear must be allayed that a Muslim who is facing criminal or civil proceeding in a syariah court may use apostasy as a ground for immunity from the process of the religious courts. The judicial decision in Kamariah bte Ali lwn Kerajaan Negeri Keiantan [2005] 1 MLJ 197 has laid such fears to rest. In this case the appellants had committed some syariah law offences before August 1998. At the time of sentencing in October 2000 they produced a statutory declaration that in August 1998 they had ceased to be Muslims. The Federal Court held that “the appellants were not automatically excused from the charge in the Syariah Court just because they had made the statutory declaration declaring they were no longer embracing the religion of Islam”. “The material time to determine whether the appellants were embracing Islam was the time when the appellants committed the offence under the (relevant law). Therefore, even if the appellants had already declared themselves as apostates in 1998, they should be brought to the Syariah Court in 2000 for the offence which was committed when they were still embracing Islam”. Applications to the syariah courts of aspiring apostates are usually left unattended. Statutory time limits should, therefore, be imposed on the syariah courts for determination of the applications of murtads . Judicial remedies should not be allowed to be defeated through delays. The Negeri Sembilan model of clear time schedules is worthy of emulation. In Sarawak, if the syariah judges, for understandable religious reasons, do not wish to get involved in facilitating apostasy, the matter can be referred to the Religious Department.
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