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Decision on conversion raises questions


(Family silhouette by jayofboy / sxc.hu)

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.

Foot-dragging

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?

What next?


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.

See also:
Scholar: Forced conversions un-Islamic
Group to appeal to Council of Rulers over conversions

Amend law to stop unilateral conversion of children
State policy on unilateral conversions

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12 Responses to “Decision on conversion raises questions”

  1. Fikri Roslan says:

    Yes, I think the government should take a bold action to settle the issue amicably to ensure that the interests of all parties are protected. The issue of religion is sensitive and we need to protect Islam as the official religion of the country. The Islamic agencies should make sure that the family should settle their problems before they make any genuine conversion. A lot of cases where the conversion was not genuine and these people reverted back to their original religions, and thus gives a bad image of Islam.
    However, I still support the current regulations where matters related to Islam should be decided at syariah court.

  2. I am happy with the decision but feel that it’s a Najib 1Malaysia PR exercise, to solve this and body-snatching incidents, justice needs to be served by repealing clause 121 (1A) of the constitution, because they cannot have five ministers to sit every time these incidents crop up, allow for equal remedy under the law.

  3. Eric says:

    Well, let’s wait and see how worthy is the “Performance First” pledge of this new government. How many years will it take from a mere non-binding declaration to an actual enforceable act.

  4. Eric says:

    @Fikri Roslan,

    what exactly is the role of the “Islamic agencies” in assessing conversions? Why does Malaysia even need these when most countries don’t?

  5. Sonia says:

    I think the most pertinent issue this raises is what right the Government, ie the executive, has to issue directives of this nature. As the Syariah lawyers association has pointed out, this is interference, once more, in the workings of the judiciary. Despite the position I may or may not hold on the issue of forced conversions, this blatant interference strikes at the somewhat diseased heart of our democracy.

  6. luvreligiousbigotry says:

    As a certain Zulkifli Nordin wrote: “If any children are found in the street as orphans, they can automatically be considered as Muslims.” Wow??
    This country has a long way to go….Let concrete laws be enacted first with regards to this ‘too good to be true’ cabinet decision.
    People are using religion as a tool to get child custody, to find more wives…

  7. Gopal Raj Kumar says:

    There is a sad twist of irony to the never ending issue of conversion to Islam of children by one parent of late that the facts and the consequences of the various arguments appear to have escaped the attention or the scrutiny of the vast majority of us non-Muslims so deeply emotionally involved in this issue for whatever the inconsistencies are contained in our ‘reasons’ for the same.

    Pathetically trapped emotionally and cruelly so in between as is always the case are the children. Torn between two individuals they love, unable to understand why their adult pain in a break up has to be inflicted on them in the name of love and god without mercy.

    Strangely enough, no one seems to complain as loudly or take issue with the mass conversions by a politically motivated movement of “born again Americanised Christians”. They preach fire and brimstone to the point of being offensive and unlawful in their actions demonising Hindus, Buddhists and other non-Christians including Muslims within otherwise secure families, breaking them up in the process. There is yet to be an open debate on the Billy Graham type prayer crusades involving high profile Malaysian businessmen and women proselytising underground and above like an Amway multi leveler in the early eighties.

    Cabinet’s decision to ‘stop’ conversions of this nature (Indira Gandhi’s children) is at best, obscure, amorphous and lacking in definition. It adds a newer and more dangerous dimension to the argument for what it fails to say about the issue.

    What everyone ought to be asking now is whether baptisms and conversions of children at birth would also be deemed illegal or prohibited? These are forced conversions by any definition. No child of 8 days has any capacity to make that decision to accept a faith he or she is ‘born into’. It is all about consent and not consensus.

    Putting it into perspective, is every Catholic child baptised at birth now subject to this prohibition?

    Amen Amin Om.

    • Celia says:

      A child may be baptised & later on in life choose to change his/her faith with little consequences unlike the Muslims who hound you to death, & even after death. Didn’t you know that???

  8. arah says:

    The beauty of Islam is that all babies are born fitrah ( Muslim). If they die they will surely go to heaven.

    Christians believe that every babies are born sinners and they will go to hell if they die before being baptized.

    Anyone know what is the teaching of Hinduism on babies if any?

    In Islam, Almighty God the Creator is so merciful that He considers every one are fitrah, unless when they are able to think they go against Almighty God the Creator.

    What is fitrah?
    http://www.bt.com.bn/en/node/69031/print

    Cheers

    • Celia says:

      That’s not true. Babies don’t go to hell. You’re misinformed. They go to Limbo where they stay till the good Lord summons them. Not their fault they were born with original sin & died before being baptised. You should check your facts before posting!

  9. Gopal Raj Kumar says:

    In Hinduism, the belief is that everyone is born. And that’s borne out by proof of the event. What they are born into is decided by those with the capacity to make that decision on their behalf while they are an infant. It is an imposition of a particular faith.

    Faith, after all, it is said (and correctly so), is a belief in something for which there is no proof. Which is why it is faith and not fact.

  10. Fikri Roslan says:

    @Eric

    The agencies related to Islam should play a more active role to advise the potential Muslim convert on things that need to be done before conversion. They should learn the teaching of Islam and certain aspect of responsibility toward their family, if the rest of the family is not going to join him [or her]. By doing this, he [or she] will convert smoothly and will not [create] unnecessary issues after [the] conversion.


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