In Malaysia, both parents must consent to the conversion of their child to Islam. For now.
Many years ago, in a provincial court, I began to panic. The judge had refused my request for an adjournment. I wanted to wait for my boss to arrive so that he could start cross-examining the witness who was an engineer. No doubt, everyone in that courtroom with mould-stained walls and creaky furniture was aware that I knew next to nothing about construction law. My opponent smiled, certain of success.
I took a deep breath then summoned every ounce of optimism and courage in my being. In the next few hours, I asked the engineer basic questions to determine if he’d followed procedure. As his face became redder by the minute, it soon became clear that he had cut corners and caused damage to our client’s property. The matter was settled out of court.
I recalled this whole episode on the morning of 29 January 2018 when I opened the Malaysian newspapers and read about a high-profile case involving the unilateral conversion of a child to Islam and the jurisdiction of the courts in Malaysia (the 'Indira Gandhi decision'). And once again on 30 October 2018, when The Star reported that Datuk Seri Dr. Mujahid Yusof had said that efforts were being made by the government to streamline and coordinate Syariah laws nationwide.[i]
Why are these issues such a big deal in the first place? Quite simply, under Malaysian law, once you embrace Islam, there is no going back. You are Muslim for life and your identity changes seemingly 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.
Confusing? To understand how all this works, let’s look at this real-life case from the Indira Gandhi decision.
Real life
The story begins 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 questioned the method of conversion and said that, ‘the issue before the court wasn’t the conversion itself, but the process and legality thereof.’[ii] The Registrar of Muallafs, who issued the conversion certificates, hadn’t complied with the mandatory requirements for conversion of a child.
What generated sensational headlines like Unilateral Conversion ‘Null and Void’[iii] 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 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.
Things continued in this fashion for a long while and I used the legal uncertainties in all these cases to craft my novel called The Age of Smiling Secrets. It explores the heartache that comes when families are torn apart in this manner. Incidentally, one of the chapters from this novel, The Legend of Nagakanna, was accepted in an anthology called, We Mark Your Memory: Writings from the Descendants of Indenture published by the School of Advanced Studies, the University of London in 2018.
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.’[iv]
There is now talk to reintroduce Clause 88A. Should this happen, the effect may be to ban unilateral conversion of a child to Islam 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 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.’[v] However, as a Muslim, my ex-husband is subject to the rules and regulations under Syariah Law. And Article 121 of the Federal Constitution stipulates the jurisdiction of Syariah Court should not be disputed even though they are not constituted as superior courts. So, I go to the Civil Courts and he goes to the Syariah Courts.
To solve such issues of jurisdiction, the idea was conceived to urge state governments to amend their state’s constitutional laws so that Syariah Courts are on part with Civil Courts. Now, Datuk Seri Dr. Mujahid Yusof has confirmed this. In actual fact, 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.
Aneeta Sundararaj
9 December 2018
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The Age of Smiling Secrets, a novel by Aneeta Sundararaj, was published in August 2018. It explores the heartache when a family is torn apart because a man converts to Islam and, without the consent or knowledge of his wife, converts their child as well. It is available in all MPH Bookstores and mphonline.com
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Endnotes:
[i] Syariah laws to be streamlined, says Mujahid. The Star Online [https://www.thestar.com.my/news/nation/2018/10/30/syariah-laws-to-be-streamlined-says-mujahid/#34h5QZwZJhQ6Gl4B.99]
[ii] 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/]
[iii] 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]
[iv] Gurdial Singh Nijar. Review of the Indira Gandhi decision. Thesundaily.my. [http://www.thesundaily.my/news/2018/02/12/review-indira-gandhi-decision]
[v] 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/]
