By Deborah Loh (thenutgraph.com)
ON the surface, the cabinet’s decision to stop unilateral conversions to Islam by one parent is a welcome resolution. But questions remain as to whether it can be effectively implemented.
One issue is whether a cabinet opinion is enforceable in a court of law when there are no legal provisions to support it.
Granted, Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz, who announced the decision today, said the Attorney-General would be tasked with reviewing and amending existing laws to that effect.
But it leaves hanging the status of children who have already been unilaterally converted and whose new identities as Muslims have been upheld by the syariah court.
Nazri, who is in charge of law and parliamentary affairs, said the cabinet’s view was that if one spouse converts to Islam, the children will continue to follow the faith of the parents at the time of their marriage. The cabinet also decided that the civil courts were the right avenue to dissolve a marriage upon the conversion of one spouse to Islam.
Long time coming
It is striking that the cabinet would only come to this conclusion now after numerous cases of unilateral conversions and broken families have come to light over the years.
The sudden announcement follows renewed controversy over unilateral conversions by one spouse after the recent case of M Indira Gandhi and her three children. Yet, since 2007, women’s groups such as the Joint Action Group for Gender Equality (JAG), which comprises six non-governmental organisations, have been pressing for amendments to current laws to oblige the converting spouse to fulfil his or her responsibilities under civil law.
Indira Gandhi and her children, with the DAP’s Lim Kit Siang and A Sivanesan at a press conference on 21 April
Women’s rights activist Maria Chin Abdullah, the executive director of Persatuan Kesedaran Komuniti Selangor (Empower), says amendments are needed for:
* Law Reform (Marriage and Divorce) Act, Section 3, to ensure the converted spouse fulfils obligations under his or her civil marriage; and Section 51(1) to let either the converted or non-converting spouse seek divorce and incidental reliefs;
* Islamic Family Law, to ensure that a converting spouse meets civil obligations upon conversion. This would entail providing documentary evidence from a civil court that the spouse’s responsibilities to the civil marriage were fulfilled; and
* Article 12(4) of the Federal Constitution to recognise the rights of both parents to decide the religion of a minor. Currently, the article only states ‘parent’ and ‘guardian’ in the singular.
“Without these, the cabinet can express its decision but how is it to stand in court? The cabinet’s decision cannot be applied in court without the necessary legal reforms,” Maria told The Nut Graph in response to Nazri’s announcement.
In fact, JAG has observed that the Attorney-General’s Chambers itself has brought up the matter of amendments to the Law Reform Act as early as 2006.
Already, in 2004, the case of Shamala Sathiyaseelan, who failed to challenge her husband’s unilateral conversion of their children to Islam, disconcerted many Malaysians.
Maria says the AG’s Chambers has received the amendments proposed by women’s groups for some time, but to date the matter has never been raised in Parliament.
In the meantime, foot-dragging over what is declared a sensitive matter, given the dual-legal system of syariah and civil laws in Malaysia, has spilled over into other areas. It has affected the right to redress for the non-Muslim spouse or family members in other areas besides the conversion of children.
Civil court judges in certain cases have tended to fall on the side of letting the syariah court decide, rather than the civil court, on matters like a person’s religion at the time of death or conversion out of Islam.
Echoing Maria’s call for law reforms is the MCA, which immediately issued a press statement following Nazri’s announcement.
The party’s political education bureau chief, Gan Ping Sieu, said the cabinet’s directive had to be followed with legislative reforms through Parliament.
Gan (Source: Gan Ping Sieu @ Facebook) “This will prevent unnecessary confusion when families are torn apart with no amicable solution and muallafs unfairly take advantage of the syariah court to gain custody and determine the children’s faith,” he said.
The cabinet’s decision also does not clarify the situation for couples whose divorces are pending, and are currently separated, Gan noted. This is the particular situation of Indira Gandhi, who has been separated from her husband for over a year.
The religious status of the converted children is also ambiguous under the cabinet’s directive. Are they Hindu or Muslim if Indira Gandhi’s divorce is still pending, and since her husband has obtained a syariah court order declaring the children as Muslims? What happens to children in previous syariah court cases where the unilateral conversion of the children by the Muslim spouse is upheld by the court, such as in the case of R Subashini v. T Saravanan?
What’s the urgency?
Interestingly, Sisters in Islam programme manager Norhayati Kaprawi notes that from an Islamic perspective, minors, particularly those below the age of puberty, are considered free from sin. “So why the urgency to convert them as minors?”
She welcomes the cabinet’s move as a “bold and progressive” one that gives equal rights to the non-Muslim parent in making decisions about the children.
But there are other scenarios that one can think of which the cabinet’s directive does not clarify:
* If the child of divorced parents is to be raised in the couple’s original religion at the time of marriage, what if custody of the child is given to the converted parent? How is that parent with a new religion to raise the child under the original religion?
* What happens if the child, converted as a minor after the parents’ divorce is finalised and is under the custody of the Muslim parent, reaches the age of consent and wants to opt out of Islam?
Nazri Aziz Nazri, when contacted after announcing the cabinet’s decision, said he was aware that the directive would raise further questions. He said these would be answered in a separate press conference after the government receives more feedback.
Certainly, the decision shows political will on the government’s part to put an end to an issue which has divided Malaysians. People might be wont to say that it is proof of new Prime Minister Datuk Seri Najib Razak’s commitment to his “One Malaysia, People First, Performance Now” promise.
Time will only tell if there is resolve to follow through with law reforms. And whether these directives and reforms will be implementation by the civil service and the courts, which will for certain come under pressure from religious groups to assert loyalty to their faith.
As MCA’s Gan points out, it is necessary for the cabinet’s directive to be obeyed by the state Islamic affairs departments and state religious councils, lest good intentions by the executive are scuppered by Little Napoleons down the line.