Shariah Creep
July 10, 2008


A court drama that is playing out in Malaysia this week says a lot about growing tensions between conservative Islam and the rule of law in this Muslim-majority nation that has long been known for its religious tolerance. It concerns the legal battle for the body of Elangesvaran Benedict, who died June 22 at age 34.

As his family mourned his death, Mr. Elangesvaran’s body was seized by Islamic authorities, who claimed that he had secretly converted to Islam and must be buried as a Muslim. The family responded with a court case claiming he was Hindu, but hours before the case was to be heard, a Shariah court — in which none of his family was present — ruled that the deceased was Muslim. After that, the civil court refused to hear the case. On Monday another civil court refused to issue a staying order while the family appeals the case. Later that night, the body was buried in a Muslim cemetery, without the family’s approval.

It’s been 20 years since Malaysia’s dual court system was enshrined in the constitution: Non-Muslims are tried in civil courts, and Muslims can be tried in Shariah courts, whose scope traditionally has been limited to issues of family law. This system has always been full of potholes, but in recent years a worrying trend has emerged: the enlargement of the jurisdiction of the Shariah courts, as civil courts stand by silently.

In 2005, a Hindu, Maniam Moorthy, was buried as a Muslim after Shariah courts determined that he had converted and civil courts refused to hear the case. Earlier this year the same thing nearly happened to a Christian woman, Wong Sau Lan, whose body was handed back to her husband only after a Shariah court determined her “conversion” to Islam had been improper.

In 2006, the case of Lina Joy gained attention world-wide when she tried to win legal approval for her conversion from Islam to Catholicism so that she could legally marry her Catholic fiancé. She went into hiding after the court rejected her request.

Malaysia’s constitution guarantees religious freedom, and the dual court system was designed to protect that. But the system works only if the right checks and balances are in place to ensure that the Shariah court is not abused by Islamic fundamentalists. The country’s political leaders need to empower the civil courts to make sure all Malaysians have the freedoms they’ve been promised.

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