[Part of this article was originally published on 19/12/2016, it has been updated ]
Just yesterday, M. Indira Gandhi (not to be confused with Indira Gandhi) finally won the custody of all her children once and for all after 9 years. The Federal Court (the highest court in Malaysia) ruled in her favour when it decided that both parents must agree to the conversion of non-Muslim children.
For many Malaysian families, religion is considered one of the core foundations of the family structure. This is especially true when it comes to raising their children, since religious beliefs are used as a compass for their moral upbringing. However, these same religious beliefs may also tear families apart, especially when a child is converted against the wishes of one of the parents.
The proper word for this is unilateral conversion of minors, with “unilateral” being a fancy word for “decided by one party”. This was what happened to M. Indira Gandhi and S. Deepa, whose cases were separate, but very similar to each other in the following aspects:
- Both were Hindus and raised their children as Hindus – Indira Gandhi has 3 children while S. Deepa has two.
- Divorced from their husbands – Both couples were divorced while they were still Hindu
- Ex-husbands converted to Islam – Both husbands converted to Islam after their respective divorces
- Ex-husbands converted their underaged children to Islam without their permission – The children in both cases were under 18 years old at the time of their conversion.
We recommend that you read up on the specifics for each case yourself, but first we gotta clarify that we’re focusing on conversions to Islam because there are unique legal issues which are not found in non-Islamic conversions. Also, we’re looking at this from a legal rather than a religious point of view, so faham-faham in the comments section, aite?
Before we head into why this is such a big deal, we should probably tell ugaiz how the problem started in the first place and, believe it or not, it’s all because of the letter “S”.
Many years ago, the court decided that only one parent was needed to change a child’s religion
Back in 2007, in a case very similar to M. Indira Gandhi and S. Deepa, Shubashini Rajasingam challenged the conversion of her children to Islam by her now-Muslim ex-husband in the Federal Court, claiming that her ex-husband had no right to convert their children without her permission.
Some people in that courtroom probably had flashback to school English classes when a legal argument came up about whether the word “parent” in Article 12(4) of the Federal Constitution is supposed to be read as singular or plural. Here’s the quote from Article 12(4):
“For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” – Quoted from the Malaysian Federal Constitution.
What’s interesting is that the Federal court interpreted the word “parent” to mean only ONE [singular] rather than both [plural], claiming to be following an interpretation from an earlier Supreme Court case in 1990. In order to understand this better, we spoke to lawyer Fahri Azzat, who also represented S. Deepa in court:
This issue is the precise point awaiting decision in the Federal Court – to decide whether the word ‘parent’ in Article 12(4) is to be read in the plural or singular. We argued that it should be read as plural because the Interpretive Provisions of the Federal Constitution require that ‘the singular be read as plural and the plural be read as singular’, so parent should be read as ‘plural’… ” – Fahri Azzat, in email interview with CILISOS
Because courts usually use the judgement from previous cases (precedents) as a guide, it basically means that one parent can legally convert their child as long as he or she can prove parenthood, like with a birth certificate. And that’s the difference one alphabet makes, because there would be no argument here if it had said “parents” instead. But this argument can be thrown out the window because the Federal Court just ruled that the word should be read as “parents” instead of “parent”.
“Okay, so convert to Islam means convert to Islam lah. What’s the big deal?” we hear some of you saying. Well, the big deal is because…
The Muslim partner may have an unfair legal advantage to gain custody of the child
Malaysia follows a dual-justice system of Syariah and Civil laws where the Syariah courts have a limited scope of power over family, personal, and some criminal matters relating to Muslims while the Civil courts hold power over non-Muslim and all other matters.
At the same time though, because Syariah law does not apply to non-Muslims, it means that (in context of this article) the wife can’t argue their case in the Syariah court even if the Syariah judge allows it, and has to argue her case in the Civil court instead – except that the Civil court cannot interfere with matters within the Syariah court (and vice versa).
Fahri tells us that this is called a lacune in law – fancy lawyerspeak for a “gap” or “something missing” – which gives an indirect advantage to the Muslim party in the sense that:
- The state religious authorities usually encourage and support converts to Islam financially, legally, and in other ways.
- The Syariah courts are more inclined to give custody of the Muslim child to the Muslim parent without hearing the non-Muslim parents’ side of the story.
- The non-Muslim parent now has to go to the Civil courts to undo the Syariah court’s decision.
- Because the Civil courts can’t interfere with the Syariah court, they are reluctant or unable to overrule the Syariah court’s decision.
- Repeat points 3 & 4 until something changes.
But this isn’t just legally unfair on the wife… it’s also legally unfair to the child as well because, being born a non-Muslim, he or she should be allowed to choose which religion to follow once of legal age as stated in the Federal Constitution. While it’s not impossible for someone who was converted as a minor to leave Islam, they will have to go through many legal hurdles which you can read here or in Fahri’s 2-sentence summary below:
“Theoretically they can choose to [convert out of Islam]. The reality is that it is very difficult to leave Islam after you convert in (Cue Hotel California).” – Fahri Azzat
So again, this isn’t a problem with the religion itself, but rather a lubang within the legal system that needs to be patched up. Luciky…
The gomen wants to patch this legal lubang™ by 2017!
During the last Parliamentary sitting in November this year, Azalina Othman – the minister in charge of law in the Prime Minister’s Department – proposed some changes (called a Bill) to the Law Reform (Marriage and Divorce) Act which will do the following things:
- Require the consent of BOTH parents to convert a child to Islam, if the parents were non-Muslim when they married.
- Until both sides come to an agreement, the child will keep the religion he or she was born into.
- The child can still choose their own religion once they reach the age of 18.
- It will apply to all cases that are still pending in court, like Indira Gandhi and S. Deepa’s.
Fahri tells us that this will most likely come in the form of a new section called Section 88(A) which will be debated in Parliament in 2017 – so it’s not really a new law but a change to the current law la. Sorry title clickbait. There’ll also be some changes to the law in regards to distribution of property, but that’s probably for another article 😛
While the proposed changes was supported by Muslim and non-Muslim MPs from both political sides (mostly), the biggest threat to this Bill actually came from the smallest Malaysian state. About a month after Azalina’s Bill was presented in Parliament, the Perlis state government proposed changes to their Administration of the Religion of Islam Enactment which rewords the BM version of the law from Father AND Mother or Guardian to Father OR mother or Guardian, supposedly to match the English version.
Some lawyers and lawmakers claim this would undermine Azalina’s Bill – especially if other states were to follow Perlis’s footsteps. The argument here is that while Federal laws (Azalina’s Bill) will override State laws (Perlis’s amendments), it still creates a conflict which, y’know, led to this whole unilateral child conversion controversy in the first place. On the other hand, Fahri takes a different view by saying that it’s still the Federal Court’s decision that’s the most important:
“[The Perlis amendments] will not have any effect … If the Federal Court decides in our favour (parent should be read as plural) then the Perlis amendment would be unconstitutional and vulnerable to a legal challenge.
If the Federal Court affirms its previous decision which decided that parent should be read as singular, then the Perlis amendment is constitutional.” – Fahri Azzat
Basically we don’t know how this will work out until one or both Bills get passed, but you might say that Fahri put the ball back in their… court. Hur hur hur.
Religion is important, but not at the expense of someone else ._.
“As a Muslim I am very happy. This is good for Islam. I don’t want Islam to be used as a tool for people to get out of their responsibility towards their spouses. They can’t convert thinking they no longer have to fulfil their responsibilities.” – Datuk Seri Nazri Aziz, Tourism and Culture Minister, as quoted by The Sun.
Many people find a sense of peace, guidance, and unity within their respective religions; so it would be completely understandable to also want that same for their family and children as well. So when one parent decides to follow a different religious path, it’s understandable as well that it’s bound to lead to some conflict. And in many of these cases, it up to the law (whether Civil or Syariah) to ensure that everyone involved is treated fairly in the end.
One thing religion should not be, is (for want of a better word) a weapon. This doesn’t only apply to the families affected – S. Deepa has been caught in a legal battle for 3 years while Indira Gandhi has been fighting hers for 9, with the children caught in the crossfire – but also on a political level where PAS Secretary-General Takiyuddin Hassan threatened to get Muslim MPs to object to Azalina’s Bill if non-Muslim MPs continued to oppose Hadi Awang’s so-called “Hudud Bill”.
So in this sense it’s great that the government has acknowledged the problems within our current laws and are working to improve them. From here on, the Federal Court has also decreed that these matters will also only be decided in the civil courts. So hopefully, S. Deepa and Indira Gandhi will be the last two people in Malaysia to ever go through such a challenge.