No solution in sight
By ZAINAH ANWAR
A bold attempt to resolve a protracted problem has yet again revealed the rifts among Malaysians in matters of religion.
The ongoing debate over the right of a convert to Islam to unilaterally convert his underage children underscores the importance of determining the public role of religion in a plural society like Malaysia.
The Cabinet recently made a courageous policy decision that when one party to a marriage converts to Islam, the minor children should be raised in the religion agreed upon by the parents at the time of marriage. This decisiveness will help to resolve an area of conflict over competing claims and interests that neither the individuals nor the courts have been able to resolve satisfactorily.
However, what was a bold attempt to resolve a protracted problem has yet again revealed the rifts among Malaysians in matters of religion. While the Cabinet decision was welcomed by non-Muslims, the Bar Council, the inter-faith Consultative Council (MCCBCHST), women’s and human rights groups and segments of the Muslim community, the advocates of Islamic state and syariah rule have opposed the decision.
Some of the Islamists felt that the issue was already decided by the December 2007 Federal Court decision, which ruled that only one parent’s consent was needed for the conversion of minor children. But in effect, this decision did not settle the matter as it did not address several questions of law.
The Court ignored Schedule 11 in the Constitution on interpretation which provides that “words in the singular include the plural, and words in the plural include the singular”. Thus the right of the “parent” to decide on the religion of children below 18 (Article 12 (4) ) should be read as the right of both parents.
Article 12 (4) must also be read with Article 8 (2), which prohibits discrimination on the basis of religion, race, descent, place of birth or gender. Read together with the Guardianship of Infants Act, which recognises that both parents have equal right of guardianship to their children, a persuasive argument can be made that the consent of both parents is needed to change the religion of the children.
The Federal Court judgment was criticised for its failure to read laws holistically and the confusion it caused over jurisdiction. Even though it ruled that civil marriages could be dissolved only by the High Court, even if one party had converted to Islam, it also held that converts could go to the Syariah Court for relief. But any judgment from the Syariah Court has no effect on the High Court.
These issues and other constitutional matters on jurisdiction and conflict of law between civil and syariah will now be heard in an appeal before the Federal Court.
Think of the children
Another earlier Court decision awarding custody to the Hindu mother, while recognising the right of the father to convert the children to Islam, also left an untenable situation in real life. How do you stop exposing the child to the practice and teachings of the religion of his custodian who is his daily caregiver and protector?
What if custody is with the convert Muslim parent: Is it realistic to expect the Muslim parent to ensure that the child is brought up in the religion at the time of marriage? Should the Court be making orders that cannot be implemented in practice?
Perhaps the more important question to answer is what is in the best interest of the child. If the court decides that custody must be with the mother, then it is only realistic that the child can be brought up in the religion of the mother. To decide that the child must be converted to Islam and brought up as a Muslim, no matter what, does not serve the best interest of the child, nor reflect Islamic juristic principles on conversion and profession of faith among minors.
As many Muslim scholars have asserted, it is not necessary to convert children to Islam as they bear no responsibility for their sins or rewards until they are of sound mind.
Also, the Administration of Islamic Law Act states that for a valid conversion to Islam, the person must utter in reasonably intelligible Arabic the two clauses of affirmation of faith, and must be aware that the two clauses mean “I bear witness that there is no God but Allah and I bear witness that the Prophet Muhammad s.a.w. is the Messenger of Allah”. These two clauses must be uttered on his or her own free will. This means that for children under 18, a parent can only give consent to the conversion, and not convert them on their behalf.
What is clear is that at all levels, be it Constitutional, Islamic juristic principles, and lived realities, the solution to the conundrum can be found. But politics, ideology, and confusion between personal faith and public policy got in the way.
When conflicts arising out of conversion, freedom of religion, moral policing, women’s rights, and human rights are viewed only through the religious prism and therefore must be decided according to syariah law, it makes the search for solutions even more complicated.
Far too often, the argument that syariah principles represent “the will and command of God” has instilled fear and silenced discussion and debate.
In Malaysia, this narrow ideological approach is now being supported by a new interpretative trend urging the Courts to read Article 3(1) of the Federal Constitution, which states that Islam is the religion of the Federation, to mean that all laws must conform to syariah principles.
Even though Article 3(4) states that nothing in Article 3(1) derogates from any other provision of the Constitution, arguments are now being made in court to give Article 3(1) an expanded meaning without considering other Constitutional provisions that limit syariah jurisdiction, and in particular Article 4(1) which recognises the Constitution as the supreme law of the land.
This view is also propagated in public forums and lectures led by Islamic state ideologues. There are even those who publicly say the Constitution only applies to non-Muslims, while Muslims of this land are governed by syariah law.
Law reform needed
The Cabinet has displayed the political will to find a solution to the endless contestations arising from conversions. Given the public outcry and heart-wrenching distress caused to parents and children, what is urgently needed now is immediate law reform to restore the law to the status quo before these confusing and conflicting judgments were made.
There must be clarity in law and interpretation that non-Muslims should not be subjected to syariah jurisdiction, a child’s religion can only be changed with the consent of both parents, and that all matters pertaining to a civil marriage must be resolved in the civil court under civil law, even if one party has converted to Islam.
In the long run, what is perhaps needed is the submission of a White Paper to Parliament that clearly addresses all the problems, complexities and competing interests on matters involving religion. The Government can then present its long-term solutions for debate on the proper role of religion in public life and as a source of public law and policy, and the framework and principles to be used to address the areas of conflict.
The renowned Sudanese legal scholar, Abdullahi An-Na’im, advocates that the use of syariah rules and principles to make laws must pass the test of “civic reason” and be subject to safeguards within the framework of constitutionalism, human rights and citizenship.
Similar frameworks are also advocated by other Muslim scholars, groups working on women’s rights in Islam, and by the newly launched Musawah, the Global Movement for Equality and Justice in the Muslim Family.
What this means is that there is a place for religion in public law and policy. But this right can only be realised within the framework of constitutional and democratic governance at home and international law abroad.
The challenge, as posed by An-Na’im, is for the advocates of Islamic laws and policies to support their proposals in free and open public debate by reasons that are accessible and convincing to citizens, regardless of their religious or other beliefs.
And those who disagree must also enjoy the public space to present their counter proposals on an equal footing, whether their arguments are based on a different set of syariah principles or from other religious, Constitutional or human rights perspectives.
In Malaysia, the public space for debate on matters of religion is expanding. The search for just solutions can only take place if we as citizens protect this space and consider the possibilities of equality and justice from multiple perspectives – religious, international human rights, constitutional and fundamental rights guarantees, and our lived realities. The use of syariah arguments for public law and policy must be grounded in the realities of modern day life in a democratic constitutional state, and a world linked by international law.
A bold attempt to resolve a protracted problem has yet again revealed the rifts among Malaysians in matters of religion.
The ongoing debate over the right of a convert to Islam to unilaterally convert his underage children underscores the importance of determining the public role of religion in a plural society like Malaysia.
The Cabinet recently made a courageous policy decision that when one party to a marriage converts to Islam, the minor children should be raised in the religion agreed upon by the parents at the time of marriage. This decisiveness will help to resolve an area of conflict over competing claims and interests that neither the individuals nor the courts have been able to resolve satisfactorily.
However, what was a bold attempt to resolve a protracted problem has yet again revealed the rifts among Malaysians in matters of religion. While the Cabinet decision was welcomed by non-Muslims, the Bar Council, the inter-faith Consultative Council (MCCBCHST), women’s and human rights groups and segments of the Muslim community, the advocates of Islamic state and syariah rule have opposed the decision.
Some of the Islamists felt that the issue was already decided by the December 2007 Federal Court decision, which ruled that only one parent’s consent was needed for the conversion of minor children. But in effect, this decision did not settle the matter as it did not address several questions of law.
The Court ignored Schedule 11 in the Constitution on interpretation which provides that “words in the singular include the plural, and words in the plural include the singular”. Thus the right of the “parent” to decide on the religion of children below 18 (Article 12 (4) ) should be read as the right of both parents.
Article 12 (4) must also be read with Article 8 (2), which prohibits discrimination on the basis of religion, race, descent, place of birth or gender. Read together with the Guardianship of Infants Act, which recognises that both parents have equal right of guardianship to their children, a persuasive argument can be made that the consent of both parents is needed to change the religion of the children.
The Federal Court judgment was criticised for its failure to read laws holistically and the confusion it caused over jurisdiction. Even though it ruled that civil marriages could be dissolved only by the High Court, even if one party had converted to Islam, it also held that converts could go to the Syariah Court for relief. But any judgment from the Syariah Court has no effect on the High Court.
These issues and other constitutional matters on jurisdiction and conflict of law between civil and syariah will now be heard in an appeal before the Federal Court.
Think of the children
Another earlier Court decision awarding custody to the Hindu mother, while recognising the right of the father to convert the children to Islam, also left an untenable situation in real life. How do you stop exposing the child to the practice and teachings of the religion of his custodian who is his daily caregiver and protector?
What if custody is with the convert Muslim parent: Is it realistic to expect the Muslim parent to ensure that the child is brought up in the religion at the time of marriage? Should the Court be making orders that cannot be implemented in practice?
Perhaps the more important question to answer is what is in the best interest of the child. If the court decides that custody must be with the mother, then it is only realistic that the child can be brought up in the religion of the mother. To decide that the child must be converted to Islam and brought up as a Muslim, no matter what, does not serve the best interest of the child, nor reflect Islamic juristic principles on conversion and profession of faith among minors.
As many Muslim scholars have asserted, it is not necessary to convert children to Islam as they bear no responsibility for their sins or rewards until they are of sound mind.
Also, the Administration of Islamic Law Act states that for a valid conversion to Islam, the person must utter in reasonably intelligible Arabic the two clauses of affirmation of faith, and must be aware that the two clauses mean “I bear witness that there is no God but Allah and I bear witness that the Prophet Muhammad s.a.w. is the Messenger of Allah”. These two clauses must be uttered on his or her own free will. This means that for children under 18, a parent can only give consent to the conversion, and not convert them on their behalf.
What is clear is that at all levels, be it Constitutional, Islamic juristic principles, and lived realities, the solution to the conundrum can be found. But politics, ideology, and confusion between personal faith and public policy got in the way.
When conflicts arising out of conversion, freedom of religion, moral policing, women’s rights, and human rights are viewed only through the religious prism and therefore must be decided according to syariah law, it makes the search for solutions even more complicated.
Far too often, the argument that syariah principles represent “the will and command of God” has instilled fear and silenced discussion and debate.
In Malaysia, this narrow ideological approach is now being supported by a new interpretative trend urging the Courts to read Article 3(1) of the Federal Constitution, which states that Islam is the religion of the Federation, to mean that all laws must conform to syariah principles.
Even though Article 3(4) states that nothing in Article 3(1) derogates from any other provision of the Constitution, arguments are now being made in court to give Article 3(1) an expanded meaning without considering other Constitutional provisions that limit syariah jurisdiction, and in particular Article 4(1) which recognises the Constitution as the supreme law of the land.
This view is also propagated in public forums and lectures led by Islamic state ideologues. There are even those who publicly say the Constitution only applies to non-Muslims, while Muslims of this land are governed by syariah law.
Law reform needed
The Cabinet has displayed the political will to find a solution to the endless contestations arising from conversions. Given the public outcry and heart-wrenching distress caused to parents and children, what is urgently needed now is immediate law reform to restore the law to the status quo before these confusing and conflicting judgments were made.
There must be clarity in law and interpretation that non-Muslims should not be subjected to syariah jurisdiction, a child’s religion can only be changed with the consent of both parents, and that all matters pertaining to a civil marriage must be resolved in the civil court under civil law, even if one party has converted to Islam.
In the long run, what is perhaps needed is the submission of a White Paper to Parliament that clearly addresses all the problems, complexities and competing interests on matters involving religion. The Government can then present its long-term solutions for debate on the proper role of religion in public life and as a source of public law and policy, and the framework and principles to be used to address the areas of conflict.
The renowned Sudanese legal scholar, Abdullahi An-Na’im, advocates that the use of syariah rules and principles to make laws must pass the test of “civic reason” and be subject to safeguards within the framework of constitutionalism, human rights and citizenship.
Similar frameworks are also advocated by other Muslim scholars, groups working on women’s rights in Islam, and by the newly launched Musawah, the Global Movement for Equality and Justice in the Muslim Family.
What this means is that there is a place for religion in public law and policy. But this right can only be realised within the framework of constitutional and democratic governance at home and international law abroad.
The challenge, as posed by An-Na’im, is for the advocates of Islamic laws and policies to support their proposals in free and open public debate by reasons that are accessible and convincing to citizens, regardless of their religious or other beliefs.
And those who disagree must also enjoy the public space to present their counter proposals on an equal footing, whether their arguments are based on a different set of syariah principles or from other religious, Constitutional or human rights perspectives.
In Malaysia, the public space for debate on matters of religion is expanding. The search for just solutions can only take place if we as citizens protect this space and consider the possibilities of equality and justice from multiple perspectives – religious, international human rights, constitutional and fundamental rights guarantees, and our lived realities. The use of syariah arguments for public law and policy must be grounded in the realities of modern day life in a democratic constitutional state, and a world linked by international law.
MOHD ADHA MOHD ZAIN (ADHA ZAIN)
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