According to him, this is a better option as opposed to bringing the cases to the Syariah High Court or civil High Court.
Zainul (left)
said this is because non-Muslims would not want to go to the syariah
court and the converted spouse may not want to go to the civil High
Court allegedly for fear they would not get a fair judgment.He noted that religious disputes in Malaysia have become a "sensitive matter", saying in other countries like Brunei there are no problems of non-Muslims seeking justice in syariah courts even in hudud law matters.
Hence, Zainul proposed that existing laws such as the Law Reform (Marriage and Divorce) Act 1976 (Civil), and the various State Islamic Family Laws (syariah) be amended to cater for the formation of a tribunal to settle such disputes.
"I propose that the tribunal consists of a representative of the judiciary from the Civil High Court, the second member a judiciary from the Syariah High Court and the third panel member would be a representative appointed by the ruler, the sultan or the yang di pertua negeri.
"Having representatives from the Syariah and civil courts would ensure the interests of the conflicting parents would be safeguarded," he told Malaysiakini yesterday.
Asked over concerns of the ruler or sultan's representative not being able to act impartially, as the ruler is also the head of Islamic affairs, Zainul said they are not rulers for Muslims alone but also non-Muslims.
"There must be some level of trust in the ruler. If everything concerning Islam is not trusted then there would not be a resolution to this problem," he said.
Zainul added that once the tribunal arrives at a decision on the custody cases, the sultan or ruler could announce it and this would be final.
The parties involved, he said, should agree that the tribunal’s decision is final and cannot be appealed at the Federal Court.
On Wednesday, it was reported that Kedah PAS Youth and the Malaysian Consultative Council of Islamic Organisations (Mapim) proposed that the respective rulers step into the issue.
Two different jurisdictions?
Presently, a person who converts to Islam would go to the Syariah Court to seek custody of the children while the non-converting spouse would go to the civil High Court to settle the dispute.
This has resulted in conflicting orders.
In the past, interfaith custody battles like the R Subashini and S Shamala cases had been brought to the Federal Court but there was no resolution.As an example, in the recent case of S Deepa (right), the police refused to act on the High Court ruling that granted her custody of her children overruling the earlier Syariah Court decision in favour of the father.
The judge ruled that the marriage was conducted under civil law prior to one of the spouse's conversion, and hence was bound by civil laws regardless.
Inspector-general of police (IGP) Khalid Abu Bakar however continued to claim there were "two rulings" and instead suggested that the children involved in the dispute be placed in childcare centres.
Commenting on the controversy, Syarie Lawyers Association Malaysia president Musa Awang argued both orders by the civil court and the syariah court are of equal strength and that is where the IGP faces a problem.
"The order issued by the civil court does not limit or result in the Syariah court order to be declared null and void," he said.However, Zainul viewed that the IGP (left) was wrong in taking the middle path as he has to enforce the orders issued.
"He is the law or policy implementer and should be enforcing it (the laws) and not interpret at his own whim and fancy," he said.
"The proper way is for him to seek advice from the attorney-general over the matter," he added.
So far, the Attorney-General’s Chambers has been silent on this issue.
This despite a subsequent Ipoh High Court ruling on a separate case of M Indira Gandhi with similar circumstances where the ruling specifically mentioned that the civil court supersedes the syariah court rulings.
'IGP's childcare solution problematic'
Meanwhile, Musa said if the IGP wants to place the children in childcare centres, then based on Section 17 of the Child Act, a court order may be needed to do this.
Zainul pointed out that to see the plan through, the IGP or the police would have to make the application before the court, but the problem is they are not parties in the custody dispute.
Several politicians from BN and the opposition have slammed the IGP's stance of not abiding by the civil High Court order in the S Deepa and Indira Gandhi cases at the Seremban and Ipoh High Courts respectively.
Several lawyers when contacted have said that the civil court order is superior, as the syariah court order is not binding on non-Muslims, and in these cases, the non-converting spouse.
Musa, however, disagreed. He said both the Syariah High Court and the civil High Court have equal footing based on Article 121 (1A) of the federal constitution, which gives both courts its powers.
