Conversion laws face major test

KUALA LUMPUR: The Court of Appeal's decision to refer the case involving the custody and conversion of the sons of S. Shamala and Muhamad Ridzwan (Dr Jeyaganesh C. Mogarajah) to the Federal Court last Tuesday has given rise to some interesting issues.

Chiefly, it is set to be one of the biggest tests for the government and judiciary following the cabinet's decision that children of divorced parents should be raised in the religion at the time of their marriage should one of them later convert to another religion.

The landmark decision two weeks ago, thus, will be tested by the highest court of the land if the current laws and enactments are not amended to provide clear interpretation on matters related to such conversion cases, according to those in the legal circles.

The cabinet's decision is seen by many as a move to alleviate the frustration of certain parents whose children had been converted to another religion without their knowledge, consent or against their will.

It is in line with the spirit of 1Malaysia, a concept espoused by Prime Minister Datuk Seri Najib Razak, who has called on Malaysians to refrain from viewing matters from narrow ethnic perspectives.
Malaysia has a dual legal system, with civil and syariah courts operating side by side.

The Court of Appeal has decided to refer five constitutional questions to the apex court before hearing the appeals as it wants the Federal Court to adjudicate on conflicting Islamic and civil laws governing conversion and the freedom of the practice of religion.

For example, there will be the question of whether the Administration of Islamic Law (Federal Territories) Act 1993, which gives the right to a converted parent to convert his or her children from a civil marriage without the knowledge and consent of the other parent, is inconsistent with the Guardianship of Infants Act 1961. This is because the amended Guardianship of Infants Act gives equal rights to a mother and father on the upbringing and custody of their children.

Then there will also be the issue of whether the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) is in conflict with the Federal Constitution and a federal law relating to the issue of converting a minor by a parent.

The Federal Court also has to decide whether there is jurisdiction for the civil High Court or syariah court to make conflicting orders, and if there has been conversion of children from a civil marriage into Islam by one parent without the consent of the other parent, where then would the non-Muslim parent seek remedy.

In the Shamala-Ridzwan case, both relied on both sets of laws -- Ridzwan on syariah and Shamala on the Law Reform (Marriage and Divorce) Act 1976.

Under the two law systems, both were granted custody of the two sons from their 11- year marriage. Seven years later, they still do not have closure on the case.

The same also happened in the case of Indira Gandhi and K. Patmanathan (Muhammad Ridzuan Abdullah), where the syariah court had earlier granted interim custody of their three children to Ridzuan and two weeks later, the Ipoh High Court granted interim custody to Indira.

In layman's terms, it is a matter of concern if the Federal Court has to make an interpretation of whether the civil court has jurisdiction over the syariah court if the marriage was first registered under civil law.

But some quarters are concerned that without any amendments to the existing and related laws, the cabinet's decision may not be helpful.

As pointed out by Malaysian Bar president Ragunath Kesavan, the cabinet directive is a policy statement that requires amendments to existing laws for its full realisation.

"The relevant legislation must be immediately amended in order to fully implement this directive without further delay," he said.

Senator Datuk Gooi Hoe Hin said, in the spirit of 1Malaysia, the government of the day should fast track amendments to various laws to avoid further apprehension that the fundamental rights of non-Muslims enshrined in the Federal Constitution are not violated.

Such amendments will ensure that the basic principles of a socially-just system are further enhanced, thereby enabling the people to have greater confidence in the government, he added.

Some, however, argue that asking for the related changes as soon as possible is easy but the reality is that it will take time to put them into effect.

This is especially so in matters related to amendments in syariah which need the consent of the Malay rulers and Islamic bodies.

Several Muslim organisations have been reported to be against the cabinet directive, posing the question whether such amendments could be carried out.

Perak Mufti Datuk Seri Harussani Zakaria said the government needs to get the views of the Malaysian Mufti Council, stressing that "in Islam, when the father or mother is a Muslim, the child automatically becomes a Muslim unless the child is above the age of 15 and can choose his or her own religion".

Many syariah lawyers feel that the cabinet decision denies the rights of people who convert to Islam.

Senior lawyer Roger Tan said: "The Federal Court can decide and work both ways. It can depart from normal decisions. Nobody knows for sure."

Whatever the outcome, the government will need the support of the majority in Parliament to make the necessary changes for the benefit of all. -- Bernama