Although the concurrent legal jurisdictions of Syariah Law and the Civil Law is unique to Malaysia, they continue to cause problems and there is a growing air of pessimism all round.

In July 2018, soon after the manuscript for my novel, The Age of Smiling Secrets, went to print, I wrote a story about the prevailing position of the law in Malaysia where both parents must consent to the conversion of a child to Islam. It stemmed from newspaper articles about a high-profile case involving the unilateral conversion of a child to Islam and the jurisdiction of the courts in Malaysia. It is now commonly called the ‘Indira Gandhi decision’.

Why was this case such a big deal in the first place? Quite simply, under Malaysian law, once you embrace Islam, your identity changes forever. You retain the right to seek redress in the Civil Courts, but you’re subject to the laws and jurisdiction of the Syariah Courts. This was confusing for the simplest of minds. To understand how it all worked, I set about studying this real-life case from the Indira Gandhi decision. The following is some of what I wrote.

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Real Life

The story began in 2009 when a Hindu man, K. Pathmana­than, embraced Islam and took the name Muhammad Riduan Abdullah. Without the knowledge or consent of his now ex-wife, M. Indira Gandhi, he converted their three children under the age of twelve as well. A legal tussle ensued and culminated in the Indira Gandhi decision which was delivered by the apex court, the Federal Court of Malaya, on 29 January 2018.

The Federal Court’s decision questioned the method of conversion and said that, ‘the issue before the court wasn’t the conversion itself, but the process and legality thereof.’¹ The Registrar of Muallafs, who issued the conversion certificates, hadn’t complied with the mandatory requirements for conversion of the child.

What generated sensational headlines like Unilateral Conversion ‘Null and Void’² was that henceforth, in a civil marriage, the consent of both parents must be obtained before a Certificate of Conversion to Islam can be issued for a child. This wasn’t always the case

Parent or Parents?

In 2007, there was a similar case involving R Subashini, her ex-husband, T Saravanan, and their children. The apex court there stated that a unilateral conversion of a child to Islam did not violate the Federal Constitution because the word ‘parent’ in Article 12(4) of the said Constitution was meant to be read in its singular form. Effectively, this meant that the consent of both parents was not required. Invariably, the non-Muslim parent had no redress.  An attempt was made to address the issue when the Law Reform (Marriage and Divorce) (Amendment) Act 2017 (LRA) was first drafted. The idea was to include a clause called ‘Clause 88A’ which stated that the religion of a child ‘shall remain as the religion of the parties to the marriage prior to the conversion’. After the child turns 18, he or she can, with the consent of both parents, convert to Islam. Clause 88A was subsequently withdrawn for contravening the Federal Constitution since, once again, the word ‘parent’ must be read in its singular form.

With the Indira Gandhi decision, there was a clear statement by the Federal Court that Article 12(4) requires the consent of both parents for the conversion of a child. Indeed, the Federal Court endorsed an extra-judicial comment by a former Lord President of the Federal Court made in 1982 who said: ‘In a multiracial and multi-religious society … we strive not to be too identified with any particular race or religion … so that the various communities especially minority communities are assured that we will not allow their rights to be trampled underfoot.’

There is now talk to reintroduce Clause 88A. Should this happen, the effect may be to ban unilateral conversion of a child altogether. Not everyone is happy. Some argue that even though the apex court is not bound by its previous decision, with the Indira Gandhi decision comes inconsistency. What shape or form such inconsistency takes remains unexplained.

Perhaps, a hypothetical situation will give some perspective. In the future, if my ex-husband converts my child to Islam in Malaysia without my consent or knowledge, the first question I should ask is, “Where should I go for help?"

“Where Should I Go for Help?”

For a start, as a non-Muslim, I cannot seek redress from the Syariah Court since ‘[i]t was trite that the Sya­riah courts did not have jurisdiction over non-Muslims and non-Muslim parties have no right to appear in the Syariah Courts.’⁴ However, as a Muslim, my ex-husband is subject to the rules and regulations under Syariah Law. Furthermore, Article 121 of the Federal Constitution stipulates the jurisdiction of the Syariah Court should not be disputed even though they are not constituted as superior courts. This means that I go to the Civil Courts and he goes to the Syariah Courts.

To solve such issues of jurisdiction, there is movement afoot to urge state governments to amend their state’s constitutional laws so that the Syariah Courts are on par with the Civil Courts. This is already the case in the eastern state of Terengganu, but only Muslims are allowed to seek redress there.

The problem is that even if we make both the courts equal and allow non-Muslims to seek redress in the Syariah Courts, what happens to the Civil Courts? Do they become superfluous? If both courts are equal, it is possible that I can seek redress in both courts and so can my ex-husband. We may have four different decisions. Which one prevails? And how on earth will we reconcile all this with our Federal Constitution?

Perhaps, it isn’t wise to be so pessimistic. Instead, let’s forget what may happen in the future and enjoy the present. Today, no longer will a child in Malaysia have something as monumental as his religion changed without the consent of both his parents. The Indira Gandhi decision has ended the unnecessary suffering of families torn apart prior to this. It is a triumph. For now.

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An Added ‘Ingredient’

Fast-forward two years and, in February 2020, we have a new ‘ingredient’ to add to this mix. So far, all the children in question were born when the marriages were still registered under the Civil Law. What happens if the child is deemed illegitimate?

On Valentine’s Day in 2020, it was reported that the highest court in the land had ruled that a Muslim child conceived out of wedlock cannot bear his father’s name. Legalities, legalese, dissenting judgements and lawyers aside, I found the entire story interesting and alarming in equal measure. This was especially so when I read this sentence: The child was born less than six months after the parents’ marriage, which is seen as being illegitimate under Syariah Law.⁵

Once again, my imagination raced ahead to think of another area of confusion that could arise because of our concurrent legal jurisdictions. Take the following rather melodramatic scenario. Say a child is conceived out of wedlock to a non-Muslim couple. During the sixth month of pregnancy, they enter into a civil marriage. When the wife is seven months pregnant, the man leaves her and converts to Islam. When the child is born, what is his status?

Even if the wife converted together with her husband, under Syariah, the child will be illegitimate because it was conceived less than six months after the marriage. It is possible that this same child, under the Civil Law, will also be deemed illegitimate. This is because the parents’ marriage can be declared null and void upon the man’s conversion to Islam. It’s as though the civil marriage never existed. If the marriage didn’t exist in the first place and the child is born two months later, isn’t the child born out of wedlock and, therefore, illegitimate?

What are the problems with illegitimacy in Malaysia? Knee jerk reactions usually focus on the property the child may or may not inherit. There are more pressing problems, though. An illegitimate child may not have access to education, healthcare and, sometimes, child protection services. Circumventing these is easy in cities where there are private institutions and one doesn’t have to be born to parents who are legally married to gain admission. What of those in rural Malaysia, where private schools and hospitals are few and far between?

In light of this, the sense of triumph is waning from the Indira Gandhi decision. Is it time to become pessimistic?

References

1. Maizatul Nazlina. The grounds of judgment in the Indira Gandhi ruling. The Star Online. [https://www.thestar.com.my/news/nation/2018/02/09/the-grounds-of-judgment-in-the-indira-gandhi-ruling/]
2. Khairah N. Karim. Federal Court rules unilateral conversion of M. Indira Ghandi's children to Islam null and void. NST Online. [https://www1.nst.com.my/news/crime-courts/2018/01/329867/federal-court-rules-unilateral-conversion-m-indira-ghandis-children]
3. Gurdial Singh Nijar. Review of the Indira Gandhi decision.my. [http://www.thesundaily.my/news/2018/02/12/review-indira-gandhi-decision]
4. Maizatul Nazlina. The grounds of judgment in the Indira Gandhi ruling. The Star Online.[https://www.thestar.com.my/news/nation/2018/02/09/the-grounds-of-judgment-in-the-indira-gandhi-ruling/]
5. Federal Court also orders NRD to remove ‘bin Abdullah’ from birth certificate. [https://www.thestar.com.my/news/nation/2020/02/14/federal-court-also-orders-nrd-to-remove-bin-abdullah-from-birth-certificate]

The Age of Smiling Secrets is the latest novel by Aneeta Sundararaj. Set in contemporary Malaysia, it is about a family torn apart when a man converts to Islam and, without the consent or knowledge of his wife, converts their child as well. One of the chapters from this novel, The Legend of Nagakanna, was accepted in an anthology called, We Mark Your Memory published by the School of Advanced Studies, University of London in 2018. Aneeta trained and practised as a lawyer before she decided to pursue her dream of writing. Read more stories like this on her website, ‘How to Tell a Great Story’. (http://www.howtotellagreatstory.com).

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