PETALING JAYA, 6 March 2009: A converting spouse should not take advantage of syariah law to unilaterally convert his or her child without the non-Muslim spouse’s consent, the MCA said today.
If the disputing parents could not agree on the baby’s religion, the child’s religion should remain the status quo until he or she reaches the legal age of 18 to make an independent decision, MCA’s political education bureau head Gan Ping Siew said today.
He said since civil marriages were governed by the Law Reform (Marriage and Divorce) Act 1976, custody issues pertaining to the child from such a marriage must be determined by the civil courts.
Gan was referring to the case of a 15-month-old girl, Hoo Joey, who was converted to Islam by her mother Chew Yin No, 23, who has adopted the Muslim name of Siti Zubaidah Chew Abdullah.
The baby’s father, carpenter Hoo Ying Soon, 28, is challenging the Negeri Sembilan Islamic Affairs Department’s decision to allow the unilateral conversion.
With the baby’s conversion, the syariah court has given Siti Zubaidah interim custody.
“In no event should a converting spouse be allowed to conveniently absolve his/her responsibility through conversion. The unilateral conversion of the religion of a child is clearly not in the interest of the child and a mockery to any system of justice.
The child in question is born pursuant to a civil marriage contracted under the Law Reform Act. Therefore, the custody of the child must be determined by the civil courts,” Gan said in a statement today.
Not subservient to syariah
He said the Law Reform Act was not subservient to syariah law based on Article 121(1A) of the Federal Constitution, whereby matters under syariah law cannot be heard by the civil courts.
“The exclusive jurisdiction of syariah courts over Muslim family matters does not mean that the Federal Constitution and its federal laws are subservient to syariah laws.
As such, the civil court still has jurisdiction over Siti Zubaidah, he added.
“What we have witnessed is an act of undue religious zealousness and blatant taking advantage of the Federal Constitution. The undue assertion of the syariah court’s jurisdiction in such cases has further exacerbated the situation,” Gan said.
He also cited the custody battle between N Subashini and her husband Saravanan/Mohd Shafi Abdullah, in which the Federal Court unanimously ruled that those married under civil law were bound by the Law Reform Act with regards to divorce and child custody.
Gan noted that in the 1980s, the constitution had allowed children under 18 to have their religion decided by their parents.
He said the word printed in the constitution then under Article 12(4) was “ibubapa” which, in the plural, referred to both parents.
“However, in recent years, the national printers have mysteriously changed the word ‘ibubapa’ to ‘ibu atau bapa’ (meaning either parent),” Gan said.
He said MCA’s stand was that the text of the relevant article should be clarified.
In English, the text of the article now reads: “For the purpose of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.”