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Bangsa Malaysia Berikan pendapat anda bagi mewujudkan BANGSA MALAYSIA!

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  #41  
Old 27-11-2006, 11:41 PM
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Quote:
Originally Posted by Gemukkk
good day, Makcik Yugi,

i hope i can tell you a muslim's understandings and practices.

in islam, everyone is told to have patience as one of their virtues. being patient leads to many other virtues such as level-headedness, clarity of thought/action, perspective, wisdom, etc.

emotionally, you may hate a person. no one is perfect. as such, in islam, it is frowned upon yet as long as you do no harm to the person, you did not incur any sin. means, you keep your hate to yourself.

however, harm is a very general word. even bad-mouthing or showing displeasure/hate are considered to harm a person.
where harm is inflicted, there is a double punishment.
one, seek forgiveness from god. repent and do such things no more to anyone at all. this is what muslims call 'taubat'.
second, seek forgiveness from that person (if not, this sin will be against you in judgement day).

i am guilty of this hate towards her.

Gemukkk,

Good to read your reply here than at the general spiritualism sections. Thank you Seantang allowing makcik to off-topic here. Now, let's get to learning in general a Muslim's understanding and practices with Islamic teaching.

hope= We all are not perfect, however, it is good that we know and we do HOPE to take religion or own belief to practise in our life. So, hope is your humble saying here, Gemukkk.

being patience = a very good way of learning and practicing. However, the sentiment of being patience needs to know by that person. Or else, makcik don't see the consequeces of getting virtues as you stated. We will talk more next.

hate a person & keep your hate to yourself = a way that is so dangerous to community living. We depend and interact socially in our daily lives no matter where and who We are. The negativity that reflects to others would cause what kind of influences in our community that you could think of, Gemukkk? A healthy living or a misunderstanding that leads to more and more conflicts in the environment we are living at? What would you suggest to get this practices to permeate positivity as for Muslim's understanding and practices then, Gemukkk?

seek forgiveness = from god and the person, I repsect the person of acknowledging his/her own act. However, seek forgiveness to own self is necessary too. This seeking would take as a reflection to ourselves to get to another level of practices. This would lead by God knows to WE know.

harm is inflicted = I would like to state that "double punishment" you have stated. It is depending on the person's own karma, where easily leads you and other Muslim friends to come out with "God knows" where makcik already requested to refrain. So, should not discuss any further. Just to let WE know that when WE did wrongful act, we are punished. However, WE are not that worst to change our lives with good deeds continueously for our own karma. The double punishment should mean more than punishment to mature religious and belief followers.

Your reply to the monk's precept is corrected to me. Muslim's ways of doing such as you suggested: "berwudhuk, prayer or reading a quran may calm the person and thus, lead the person to re-think the situation/emotions/perspective," I believe, are similar to meditation. However, one needs to awarre of his/her negativity towards anger and hate is not subvert but release to permeate peaceful understandings and reactions. It is easily to understand, to accept, and to talk, when in practices WE need more awareness and alert to our emotions of hate and anger. Hope WE are helping each other into our own religion and belief practices daily.

Thanks, Gemukkk. Also, Seantang, thank you very much to excuse makcik's interruptions here. Your posts of in this sections would bring good discussions.
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Last edited by Yugi : 27-11-2006 at 11:57 PM.
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  #42  
Old 28-11-2006, 08:50 AM
Gemukkk Gemukkk is offline
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hi Sean,

as mentioned by Faiza Tamby Chik J; "What is before me is a dispute involving a Hindu marriage between the plaintiff wife and the defendant husband entered into on 5 November1998."
the case is on the person, not the religion nor the process.

note the use of 'civil' (shying away from touching religion) throughout the text, ie.; "First, the civil marriage is very much alive unless it is brought to an end by the unconverted spouse.".
Because once the guy converted into islam, he cannot have a non-muslim wife.

Section 81 is in tandem of what is taught in islam; syurga terletak di telapak kaki ibu. yes, emphasis is more on the mother.
and that is why there is "Tertakluk kepada Seksyen 82" because in islam, the powers of a mother does not exceed religion itself.

as you can see, that is why the recommendation to review current laws remain a recommendation. to review the laws would be against islam itself. it is not just the father, but the entire people involved in the change would be accountable in islam. section 82 should give an indication of the terrible burden emplaced on the father and every people involved (no matter how remote). it is not a matter where the muslim judge/solicitors/families/relatives/spectators/anyone who knows of this case can wash his hands off once the case is decided.

even High Court's final decision gave joint custody to Shamala and Ridzuan and placed a ‘caveat’ as per section 82 whereby she would lose the right to actual custody of the children.

even Harun Hashim SCJ, in Mohamed Habibullah bin Mahmmod v Faridah bte Dato’ Talib (1993) 1 CLJ 264 (p. 268), said:
it is obvious that the intention of Parliament by Art. 121 (1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court... I am therefore of the opinion that when there is a challenge to jurisdiction, as here, the correct approach is to firstly see whether the Syariah Court has jurisdiction and not whether the State Legislature has power to enact the law conferring jurisdiction on the Syariah Court.

as also mentioned, "Article 121 of the Federal Constitution clearly spells out the separation of powers and jurisdiction of the Civil and Syariah Courts. If the Civil Court transgresses on the jurisdiction of the Syariah Court by enforcing caveats on the practice of Islamic teaching, would it not seem that the Civil Court is taking on the role as the custodian of the Syariah Laws? If the Civil Court were to do so would it not breach the philosophy behind Article 121 of the Federal Constitution?"


please also consider the following as mentioned in the text:

1) a caveat on the opinion was made in this way; "If the parties should put emphasis on these more fragile victims, and if we erase the word ‘Hindu’ or ‘Muslim’ from the relevant portions of the texts of their case, the priorities would be much clearer."
with that caveat, it basically meant that he knew that under islamic law (even under section 82), what the decision should be.

2) Subsequent to this High Court decision, Shamala applied to the Cvil High Court for a declaration that the conversion of the minor children to Islam was a nullity. On 13 April 2004, the Court dismissed Shamala’s application on the ground that the Civil Court did not have the jurisdiction to hear the matter and only the Syariah Court could adjudicate on such matters. Further, the learned Judge agreed that Shamala did not have the locus to appear in the Syariah Court.


it is interesting to note that while much was said about the rights of the mother, the rights of the father was not elaborated. since all of us dont have the actual transcript, we are only relying from a person's excerpts of judgements and opinions.
in a way, this may lead to tunnel vision influenced by bias.



-- made no mistake, if a review is to be done to make the person accountable, yes it can be done. --
but if a review is done to change the conversion process against islam, i can surely say there will be an uproar.
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  #43  
Old 28-11-2006, 09:10 AM
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hi Makcik Yugi.

about the hate part and keeping it to yourself. it merely meant that if you hate someone and cant make it go away, then keep the hate inside you (as in, shut up) and dont let it affect individual/societal relationship.
hope i explained it right. it is not about keeping grudges or a festering hostility inside your heart.
that is why even bad-mouthing or showing displeasure/hate is deemed to bring harm to the person.
basically, given time once a person cools down and have thought much on the matter, many a hate would go away...

seeking forgiveness from our own self? yes, that's true.
in a way, once you acknowledge that you are at fault, it is a self-healing (or forgiving) act.

seeking forgiveness from that person itself is islam's requirement due to its emphasis on social relationship and fairness (especially after you have harmed the person). so for muslims, one has no choice. one must go to the person and seek his forgiveness. that act is enough. whether he forgives or not, is not one's concern anymore. that would be the other person's concern now.

more alertness? i agree.
i always thought that by being patient, a person thinks before he acts. with that, he would be more aware of his emotions (which is the first thing he would do had he not paused to think first).
but each of us has his own style/understanding, i would say.

no need for thanks. i am learning from all of you too.
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  #44  
Old 28-11-2006, 09:42 AM
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Good to know, Gemukkk. Makcik should dismiss from interupting Seantang's discussion then. Thanks.
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  #45  
Old 28-11-2006, 02:43 PM
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Harun Hashim SCJ, in Mohamed Habibullah bin Mahmmod v Faridah bte Dato’ Talib (1993) 1 CLJ 264 (p. 268), said: it is obvious that the intention of Parliament by Art. 121 (1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court... I am therefore of the opinion that when there is a challenge to jurisdiction, as here, the correct approach is to firstly see whether the Syariah Court has jurisdiction and not whether the State Legislature has power to enact the law conferring jurisdiction on the Syariah Court.

In my opinion, this is where I think the High Court has erred in the Shamala case. It did not adequately determine the parameters of jurisdiction, and as such it did not correctly define the legal issues. In matters of jurisdiction, there is always a crucial importance placed on the timing of the incident, which will decide what laws should apply in the first place.

Rather than a case of where a conversion turns a Hindu marriage from a monogamous to a polygamous one, the real issue is really a contravention of civil polygamy laws, which monogamous Hindu marriages are subject to. It is a case where a man married more than one wife while he was still a party to a monogamous marriage. Whether he is now muslim or not, doesn't matter because he wasn't muslim when the Hindu marriage was entered into.

Therefore he should have been tried in a civil court for polygamy first. After ending the civil marriage and serving the judgement for polygamy, he can now, of course, take up polygamy legally if he so wishes, but not before.

As for the children, the laws are clear (to me, at least):



Section 5 of the Guardianship of Infants Act 1961 states that:
(1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.

(2) The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father.



Both parents have equal custody over the children, including the choice of religion. Therefore, it is my view that the father did not have the right to unilaterally convert his children. And since the mother did not give up her rights over the children, imho, a conversion did not take place even though the conversion process did.

It's like if the seller doesn't own the land, a sale of land doesn't take place even though a S&P agreement was signed.

Whether or not the requisite conversion procedure was or was not performed is not the issue. The earliest fact is that the father did not have the right and authority to unilaterally put those children through the conversion process in the first place. This is where the timeline has again been ignored in determining jurisdiction and which laws should apply.

I would say that what non-Muslims are most distressed about, is the court's view of that any conversion of minor children is legitimate - even when there is cause to believe that the Guardianship of Infants Act 1961 (a civil law) was contravened first before the conversion took place. The civil court should have first, at least made a judgement whether one parent has the right or authority to unilaterally convert his children without the other parent's consent.

The High Court basically took the view - "what's done is done. Convert already, what to do? It's too late now" - when it deferred to the syariah court to determine the legality of the children's conversion.

Imho, I consider this a miscarriage of justice. The civil court must first judge whether the children are still Hindu. Only when the civil court is satisfied that they are no longer Hindu, should their status as muslims be turned over to the syariah court.

it is interesting to note that while much was said about the rights of the mother, the rights of the father was not elaborated. since all of us dont have the actual transcript, we are only relying from a person's excerpts of judgements and opinions. in a way, this may lead to tunnel vision influenced by bias.

The rights of the father are stated in Section 5 of the Guardianship of Infants Act 1961. Equal rights and authority as the mother.

Last edited by seantang : 28-11-2006 at 02:54 PM.
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  #46  
Old 28-11-2006, 03:01 PM
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i am no scholar trained in legalities so i cant comment whether high court has erred or not.

the only part i can tell is that as muslims, syariah court is the relevant one since muslims are governed by the rules.

i dont think they can try him for poligamy. there is a matter of legality. non-muslims cannot marry muslims without converting. so how to try him for poligamy because the second marriage was after he became a muslim. there is no jurisdiction. but syariah court has.

equal rights, yes. means the father has rights too regardless of religion, yes.
so the father did not give up his rights by converting. so while some took the stand of pro-mother, some will take the pro-father stand. in the end, the decision made was to appease both.

asi have said, we did not have the full transcript. how do we know the learned judge did not do a full study and therefore, erred?

had a procedure been introduced, nothing can be done if the conversion was done prior to consent/registration. the authorities cant nullify a conversion because in islam, no one has the power.

you mentioned that the conversion is done without consent. so, does this mean the person is at fault or the religion?
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  #47  
Old 28-11-2006, 03:55 PM
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Quote:
Originally Posted by Gemukkk
i dont think they can try him for poligamy. there is a matter of legality. non-muslims cannot marry muslims without converting. so how to try him for poligamy because the second marriage was after he became a muslim. there is no jurisdiction. but syariah court has.
Good point. I overlooked that. Yeah, then what the High court did looks right. Dissolve his Hindu marriage in the civil courts and not touch on his muslim marriage.

Quote:
Originally Posted by Gemukkk
equal rights, yes. means the father has rights too regardless of religion, yes. so the father did not give up his rights by converting. so while some took the stand of pro-mother, some will take the pro-father stand. in the end, the decision made was to appease both.
Yes, the father has equal rights. That means that he should be able to prevent his wife from converting the children without his consent. The point is that one parent (father or mother) doesn't have the right to unilaterally change the religion of their minor children.

Quote:
Originally Posted by Gemukkk
asi have said, we did not have the full transcript. how do we know the learned judge did not do a full study and therefore, erred?
My opinion that he erred lah. I'm not stating that he was found to have erred by another court etc., but just stating I think he was wrong.

Quote:
Originally Posted by Gemukkk
had a procedure been introduced, nothing can be done if the conversion was done prior to consent/registration. the authorities cant nullify a conversion because in islam, no one has the power.
My view is that they have to judge if a conversion did occur in the first place. If there was no conversion, there would be nothing to nullify.

Quote:
Originally Posted by seantang
The civil court must first judge whether the children are still Hindu. Only when the civil court is satisfied that they are no longer Hindu, should their status as muslims be turned over to the syariah court.


See below as well.

Quote:
Originally Posted by Gemukkk
you mentioned that the conversion is done without consent. so, does this mean the person is at fault or the religion?
The person definitely. A person with good intent would have sorted out all his/her affairs first, instead of doing things on the sly.

And the procedure. Religion is not the point. Legality is. A child has 2 parents with equal rights. If only one parent takes an action on something that requires the consent both parents, then the action could not have legally taken place. The action is void because the capacity (right & authority) to perform this action simply wasn't there in the first place. This need for the 2nd parent's approval cannot be exempted simply because the action, in this case, is something religiously sensitive, like a conversion.

Quote:
Originally Posted by seantang
...if the seller doesn't own the land, a sale of land doesn't take place even though a S&P agreement was signed.
Just because there's an S&P agreement, doesn't mean that the land is sold. The seller must own the land in the first place, in order to sell it.

Last edited by seantang : 28-11-2006 at 03:58 PM.
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  #48  
Old 28-11-2006, 04:35 PM
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i agree about a parent shouldnt be doing that. the parent is at fault. not the religion nor the process.

a conversion is very easy. saying shahadah. no need for ceremony, procedures and such. that is why it is hard to judge against a conversion.

if the consent is by both parties, there wont be dispute in the first place. such as the case, the person is at fault.
not the religion nor procedures. because once the father has converted the child, the muslim authorities' hand is bound whether consent by both parties were reached or not.

the conversion is legal. capacity is discussed in issues or ownership. this is guardianship.

not necessarily. the seller need not own the land as long as he can prove assignment of ownership.
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Old 28-11-2006, 05:55 PM
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Quote:
Originally Posted by Gemukkk
if the consent is by both parties, there wont be dispute in the first place. such as the case, the person is at fault.
I agree.

Quote:
Originally Posted by Gemukkk
not the religion nor procedures. because once the father has converted the child, the muslim authorities' hand is bound whether consent by both parties were reached or not.
I agree on the religion bit, but not on the procedures bit. My contention is that since there was no consent of both parents, the conversion could not have legally taken place, therefore the religious authorities are not bound.

It is only after the full process conversion (ie. convert out of Hinduism and subsequent convert into Islam) that the children are legally muslim. But if they were legally unable to convert out of Hinduism, how could they be deemed to have converted into Islam?

It's back to the exit -> entry thing. If the exit was not done, there could have been no entry.

I just think we cannot regard the coverting into islam portion to represent the entire conversion process ie. ignoring the convert out of Hinduism portion.

Quote:
Originally Posted by Gemukkk
the conversion is legal. capacity is discussed in issues or ownership. this is guardianship.
I respect your view. Mine's the opposite. Capacity is just as applicable to being a child's guardian. There are limits to what a parent can unilaterally do ie. his capacity as a single guardian. If his capacity does not include unilaterally choosing the religion of his child, he cannot convert them by himself.

Quote:
Originally Posted by Gemukkk
not necessarily. the seller need not own the land as long as he can prove assignment of ownership.
Yes, there would need to be a document of assignment, specific authorisation to act or power of attorney. In this case, the father certainly didn't have any assignment from the wife.
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Old 28-11-2006, 08:36 PM
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again you blame religion/process rather than the person.

that is why i keep requesting to understand how conversion is done, because there is no full process of conversion or steps or procedures or anything.

as i requested many times, you need to understand the simpleness and most importantly, how binding a conversion is, not just to the person but to other muslims as well..
once the parent say the kids convert, the islamic rules/process comes into place. this is mandatory. no muslims dare nullify it regardless of arguments.

that is why the onus/fault (whichever you look at it) falls on the parties themselves.

that is why there is a syariah court. anything related to islam (conversion, apostasy, etc.) is not under the jurisdiction of civil courts. tht is why there is no such thing as legally unable to convert out of another religion. where is the illegality under civil court when it has no power to hear that in the first place.
under syariah court, it is legal by virtue of the first paragraph.

if there was no capacity and thus no legality, how could high court gave daily custody but with the caveat enplaced?

the father need no assignment because as you yourself said, this is a joint guardianship.
high court's ruling of daily custody with caveat enplaced also reflects joint guardianship.

all of your arguments does not reflect what you say about not shooting my religion, though i have said many times that this is a person's fault.
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