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Lets look at the various view first:
Karpal Singh (support):
Karpal said that “there was no doubt the Cabinet’s decision was pragmatic, reasonable and in accordance with the considerations of justice.”
The Lion of Jelutong even roared at PAS guy Mahfuz Omar, thus giving more credence to the fact that Pakatan Rakyat coalition is fragile saying that the reaction by PAS is “unjustified attack on the decision of the Cabinet”.
“Non-Muslims who embrace Islam should not do so for the purpose of defeating the rights of their non-Muslim spouse, or in any way affect the rights of children born during their marriage,” Karpal Singh said in a press statement Friday.
However, he questions the validity and power of the cabinet’s decision: whether the Cabinet’s decision, which was an Executive act, could override or in any way supersede the Federal Court’s decision in Subashini Rajasingam vs Saravanan Thangathoray and other appeals.The Federal Court ruled on Dec 27, 2007 that the husband in that case, who had embraced Islam, could lawfully, following his conversion, have the right to convert his under 18-year-old child without the consent of his non-Muslim spouse.
The Federal Court in that case considered Article 12(4) of the Federal Constitution, which states: “For the purposes of Clause (3), the religion of a person under the age of 18 shall be decided by his parent or guardian.”
Karpal said the Federal Court interpreted the word “parent” in the said Article to mean “either parent”.
“It has been pointed out, and rightly so, by law professor Dr Shad Saleem Faruqi that what was missed by the court and counsel in that case was that in the 11th Schedule to the Federal Constitution, which deals with the law on interpretation of the Federal Constitution, words in the singular include plural, and words in the plural include the singular.
“The word ‘parent’ in Article 12(4) must, in the circumstances, be taken to mean ‘both parents’ without whose consent the religion of their child under the age of 18 cannot be determined.”
Karpal said that in the public interest, the Federal Court should forthwith review its own decision.
“This step is more than necessary now in the light of several similar cases having come to public attention.”
Indeed, the earlier judgment is flawed as it doesn’t solve the problem. Parent means “parents” as well in the interpretation of the law.
FT PAS Youth (oppose):
Action speaks louder than words, so these guys decided to do the “in-thing” nowadays – protest. They protested the cabinet decision at Masjid Jamek in Kampung Baru last Friday.
The 15-minute gathering attended by about 100 people was held after Friday prayers. The crowd dispersed after being asked to do so by police.
Federal Territory Pas Youth chief Kamarulzaman Mohamad said the cabinet had no right to direct the attorney-general to review and propose changes to the law to prevent any future complications to families when a spouse converted to Islam.
“It is the right of Parliament and the Yang di-Pertuan Agong, not the cabinet.”
He said the ruling had interfered with the powers of the syariah court, the state muftis and the Religious Department.
Again, back to the main points – who has the power to issue decisions?
MCA (supports):
The MCA hailed the cabinet’s decision in resolving the dispute on the religion of minors should one parent convert to Islam.
Its president, Datuk Seri Ong Tee Keat, said the decision would provide a good reference to other similar cases.
“This is a good move and will help solve the current problems regarding religious conversions.”
He said while the party acknowledged freedom of religion, there were a few individuals who renounced their faith solely for their own needs or to be absolved from responsibilities.
This shows how meek and powerless MCA was in the last 10 years or so. Nothing happened in previous cases, but suddenly or Indira’s case there’s a directive. Either that, or it shows new PM is far better than the last two. The decision by cabinet is meaningless until it becomes word of law.
MIC (in support):
MIC secretary-general Datuk Dr S. Subramaniam said a permanent solution should be found and the laws amended to ensure the implementation of the government’s decision.
“I urge all parties to cooperate on this matter. We will do our best to ensure such problems do not recur,” said Dr Subramaniam, who is also human resources minister.
Subramaniam said the government’s decision would resolve the problems faced by Indra Gandhi.
Refer comment on MCA above. It applies to MIC as well. Another ill-informed comment by Dr S. Subra in saying that the decision will solve Indira’s problems. The directive is not binding, not law. The convert will say civil court order have not effect on him because he already obtained a conflicting Syariah court order.
Law Practitioner Pushpa (in support but skeptical?):
Family law practitioner Pushpa Ratnam said Section 51 of the Law Reform (Marriage and Divorce) Act 1976 only allowed a non-converting spouse to file a petition to dissolve the civil marriage.
“The provision does not empower the converting party to take steps to file a divorce petition.”
… Pushpa said, at present, most of the converting spouses would not inform their partners of their religious status nor did the authorities.
“The non-Muslim spouse is in the dark and is unaware of when and where the conversion took place.”
She said Nazri’s statement did not address the issue of nullifying the conversion of non-Muslim children.
“What happens to the children who are converted through no fault of theirs because of disagreements of one spouse?“
Pushpa said the conflict between the syariah and civil jurisdictions had to be resolved immediately and this could be done only through amendments to the Federal Constitution and other federal laws.
She said the Federal Court ruling on R. Subashini’s case was worrying as it served as the law (see accompanying story).
Actually, Nazri’s statement said that children should be following their religion before either one parent converted. So, in Indira’s case, the kids should be Hindus. But, remember, its not binding. What can be done now is to ask religious department to declare the conversion null and void for some “technical reasons” and get Syariah court to retract its order to give custody of child to the father. If not, this mockery will continue. Indira will not be subjected to Syariah court, and the husband will not subject to civil court. Again, only solution is amendments to Federal laws, and Syariah laws.
Lawyer Vicky (unsure):
Lawyer Vicky Alahakone said she had come across cases of spouses converting to evade rulings of the civil court over maintenance, division of matrimonial property and custody of children.
“This is done in refusal to submit to the jurisdiction of the civil court.”
She said the maintenance of children below 18 could be stopped by a father following a Federal Court ruling in September 2004.
“It is causing a lot of problems in divorce cases,” said Alahakone, who is a member of the Malaysian Bar’s family law committee.
She said the council had submitted numerous memoranda to the Attorney-General’s Chambers in the past.
This lawyer touches on another aspect – money. The conversion is used to escape from responsibility to original spouse.
Lawyer Mohamed Haniff (oppose):
Lawyer Mohamed Haniff Khatri Abdulla said the cabinet had a constitutional duty to uphold and protect Islam as the religion of the federation.
“This is because the religion of a child due to the conversion of a spouse and custody is based on Islamic principles.”
Haniff, the lawyer who appeared for Muhammad Shafi Saravanan Abdullah in the Federal Court in 2007, said the cabinet decision ran contrary to the Islamic principles.
“Under what authority did the cabinet give the direction?“
This guy hit the nail on the head. If follow their religion, its correct move by the converting spouse. So, how can cabinet issue a directive which is against the law?
Should one uphold and protect their religion at the expense of others? What justice is there? You see, this is the problem when you put one religion on higher ground that others. There will be inequality, which flies in the face of religions itself, especially, when the one selected is seen as strict and intolerant.
JAKIM DG:
To determine the religious status of a child when a parent converts to Islam, one has to look at the syariah as well as the existing Malaysian laws, said the Department of Islamic Development Malaysia (Jakim) yesterday.
Its director-general, Datuk Wan Mohamad Sheikh Abdul Aziz, said that under Article 12(4) of the Federal Constitution, the religion of a person under the age of 18 years shall be decided by his parent or guardian.
“Based on this provision, the consent of just one party is sufficient in determining the religion of a child because the word used in Article 12(4) is ‘parent or guardian’ not ‘parents or guardian’ which means ‘mother or father or guardian’,” he said here.
He said Section 95 of the Administration of Islamic Law (Federal Territories) Act 1993 provided that a child who has not attained the age of 18 years may convert to Islam if his parent or guardian consented to his conversion.
“Among the cases that can referred regarding the right to determine the religion of a child is Subashini Rajasingam v Saravanan Thangathoray, where the Federal Court ruled that the father had the authority to convert his child to Islam under Article 12(4) of the Federal Constitution.
“This was because according to Article 12(4), the religion of a person below the age of 18 years shall be decided by his mother or father or guardian; therefore, in this case, the husband had the right to convert his child to Islam even though his wife had disagreed.”
Wan Mohamad said from the syariah angle, the person with the right to take care and raise a child must be a Muslim because if the person is not a Muslim, there is a worry that it would harm the religion of the child under his care.
He said the rights of a Muslim convert should be protected, and a person who converted should not be seen as shirking his obligations.
On the Mohd Ridzuan case being tried by the Perak Syariah High Court, Wan Mohamad said all parties should be patient since the case was ongoing.
The word “parent” is one of the root cause of the problem. This guy interprets his version, while some say parent is taken to refer both parents even though its singular. Only solution, add an “s” to it by amending the Act. The landmark ruling of Subashini case is actually detrimental to the non-Muslims, as pointed out by Bar Council last time. It allows the parent to convert unilaterally. I believe its is one of the fatal mistakes done in courts, though can’t really blame the judges because the law is flawed. By using the flawed judgement, more cases will be supporting the convert and not the non-converting spouse, because there’s a precedence already.
However, the court in Subashini’s case granted custody to her, with the rule that she shall not attempt to convert the kids into Hinduism. Here, the DG of JAKIM is telling that the Muslim child should be raised by the Muslim parent. So, effectively, by converting, you will get your kids, as you can convert them, and then since they are Muslims, you can take care of them. Can you see the spiraling effect of one person converting? By one stroke of the pen, you increase the population of one group, and reduce the population of others dramatically.
Based on Article 12(4), as the Jakim DG says, one parent can convert without approval of the other. So, father converts the kids in Muslim, then mother can surely convert the kids back into Hinduism or other religion also right? The law should apply to everyone right? If we follow this logic, it will be a never-ending seesaw of conversion until the kids turn 18! Unfortunately, the convert husband then will make use of Syariah law and position of the religion to block attempts by mother to reconvert the kids. So, the convert has the privilege of using parts of either set of laws to suit his needs, while the mother is stuck. So, the conversion is basically one way street.
Perak Mufti (oppose):
In Ipoh, Perak mufti Datuk Seri Harussani Zakaria has urged the government to seek the views of the Malaysian Mufti Council before making any decision regarding Islam to avoid confusion.
He said the government decision that a child’s religion must be in accordance with the common religion of the parents at the time of marriage should have been discussed by the council first.
“In Islam, when the father or mother is a Muslim, the child automatically becomes Muslim unless the child is above 15 years old and can choose his own religion.”
He says child automatically becomes a Muslim if father or mother is one. So, why need to convert the kids? So, in this case, better get divorced first, see who gets custody, and then attempt to convert.
ABIM, Syariah Lawyer Assocation, Welfare Association for Muslim Converts (oppose):
In Kuala Lumpur, several Islamic non-governmental organisations urged the government to review the decision, saying that it was made without taking into consideration the existing laws and views from the relevant parties.
The decision denied the rights of those who converted to Islam, said Malaysian Syariah Lawyers Association president Mohamad Isa Abdul Latif at a press conference attended also by other bodies, including the Malaysian Islamic Youth Movement and Pan-Malaysian Dakwah and Welfare Association for Muslim Converts.
The Syariah Lawyers Association even expressed shock over the Cabinet directive.
Well, this is something that the groups should have helped to avoid by compromising with MCCBCHST in earlier talks/discussions, but until now, there was no agreement between them.
PKR MP Zulkifli Nordin in The Star (oppose):
A PKR MP has questioned the Cabinet’s decision to amend the laws of conversion for children. He thinks it contradicts the Federal Constitution and Federal Court decisions.
Kulim-Bandar Baru MP Zulkifli Noordin disagreed with the decision to allow children whose parents are divorced — and where one parent had converted to another religion — to be brought up in the “common religion at the time of marriage”.
In his blog, he said the issues relating to the conversion of children did not arise as the Federal Court had made several rulings in the past to address them.
“Actually this issue had been addressed clearly by the Federal Court in the Subashini case, where the court stated that the issue is bound by Article 12(4) of the Federal Constitution,” he said.
Article 12(4) states that the religion for a person under the age of 18 is determined by his or her parents or guardian, and this meant either one of them can decide which religion the child practises.
“Therefore the issue does not arise in the case of Patmanathan @ Mohd Ridhuan who decided that Islam is the right religion for his children,” he said.
He added that the issues of conversion and custodial rights were two separate matters, as addressed in the S. Shamala case where the father embraced Islam and converted his children’s faith but was not given custodial rights.
“The custodial rights were given to the mother, a Hindu, with a caveat that the mother cannot convert the children’s religion,” he said.
He said the presumption that the father would automatically get custodial rights from the Syariah Court while the non-Muslim mother would definitely lose her case was unfounded.
This guy is in the wrong party. PKR should ditch him or send him over to PAS. I would argue that the same Article 1294) can be used by Indira to convert her kids back to Hinduism. Why not? She need not get approval of her convert husband. If Pathmanathan can decide which religion is right for his kids, so does his wife. So have the last say? Pathmanathan, because he is Muslim? Then that is discrimination.
And does Zulkifli think that it easy for a parent to raise the kids who were converted without her consent, seeing her kids praying to a different God, not able to take part in festivals, or even eat mother’s cooking (halal food)? Be practical lah. Talk also must use the brain a bit.
MCA (support):
The MCA had condemned the statement by PAS info chief, Mahfuz Omar who criticised the cabinet decision.
Wanita MCA has taken PAS information chief Mahfuz Omar to task for his criticisms against the Cabinet’s latest decision that minors follow the common religion of the parents before their divorce.
The movement added that Mahfuz had also erroneously accused the Barisan Nasional Government of “becoming harsher against the rakyat to the level of confiscating the rights of parents towards their children”, as reported in HarakahDaily.Net.
Movement chief Datin Paduka Chew Mei Fun said the announcement by the Prime Minister’s administration served to counteract some quarters’ attempt to evade their family responsibility through the justification of converting to Islam.
“Such irresponsible practices should not be condoned. We believe this announcement is a pertinent step towards preserving harmony and respecting the rights of non-Muslims, and the jurisdiction of the civil court in a plural society with diversities such as faith and ethnicity.
“We stand by the decision of the Cabinet under the leadership of Datuk Seri Najib Tun Razak on this long-standing inter-faith conflict arising from conversion of one spouse to Islam and subsequently converting their children to Islam without the consent of the other non-converting spouse,” said Chew in a press statement.
She added that the announcement was in tandem with the spirit of the 1999 amendment to the Guardian of Infants Act 1961, which guarantees the rights of mothers to guardianship.
MCA focuses on the irresponsibility of the parent who converts and the rights of mothers to guardianship. We have to see how far MCA will push to ensure the decisions is translated into appropriate amendments in the law.
Pakatan Rakyat (unsure):
The three parties in the Pakatan Rakyat coalition have arrived at an initial stance on the cabinet decision that bars parents from secretly converting their children to another faith.
As each of the parties – PKR, DAP and PAS – hold a different and contradicting view on the matter, their leaders have agreed that priority should be given to resolving custody issues before taking up matters relating to religion.
PKR deputy president Syed Husin Ali said when contacted that issues linked to conversion need to be further studied.
Explaining that Pakatan does not necessarily have to adopt a common position on every matter, he said “we need only a minimum (stance) to hold us together”.
Those at the high-level meeting on Sunday were PKR de facto leader Anwar Ibrahim, DAP supremo Lim Kit Siang and PAS president Abdul Hadi Awang.
Pakatan decides to take a safe route by proclaiming that the custody issue should be solved first before religion issue is tackled. While it may reflect the idea of “agree to disagree”, it also reveals the gap between the three parties. DAP and PAS on separate corners, and PKR in the middle, holding them together.
DAP (support):
Lim said the DAP is of the view that conversion of children should only be done with the consent of both parents. In the event of a dispute, the children should remain in their original religion until they reach legal age.
“Family unity and parental rights cannot be compromised,” he said yesterday in a telephone interview.
Lim welcomed the cabinet’s decision but pressed the Barisan Nasional government to amend the federal constitution to give legal effect to its decision.
Article 12(4) of the constitution states that ‘the religion of a person under the age of 18 years shall be decided by his parent or guardian’.
Some law experts are of the opinion that ‘parent’ is understood to include the plural, to vest guardianship rights in both parents.
However Federal Court last year interpreted the word ‘parent’ in the singular, concluding that either parent could convert a child to Islam.
Lim pointed out that there is an alternative to amending the constitution, and it would involve a Federal Court review of its decision.
He, however, refused to respond when asked if Pakatan should adopt a common stand in this matter.
“Let us be clear on DAP’s stand and let the issue develop,” was all he would say.
DAP doesn’t want to rock the boat, especially with possible by-elections on the way. Anyway, DAP is among the clearest ones when making a stand. Let’s see how long they can keep up their stand in the face of Pakatan’s unity.
As LKS says, the only legal and binding solution is amendment to the laws. And he agrees with the cabinet decision.
PAS (oppose):
Publicity chief Mahfuz Omar lambasted the cabinet decision as having gone against the constitution.
Sin Chew Daily quoted him as saying that the decision had superseded both the constitution and the law, thereby denying the right of parents to take care of their children.
Mahfuz said there was a political agenda behind the move, to win back support from non-Muslims who had backed the opposition in recent elections.
PAS obviously has to oppose in order to been seen as protector of their religion. Mahfuz is right in the sense that the decision is going against the law, but then, the law is biased and not perfect. Two wrongs doesn’t make a right though.
Political agenda always exists, but for the citizen, fairness and justice is important. They want the leaders to use common sense, but that may be contradicting someone’s religion. So how?
PKR (unsure):
The party chose the middle path that focuses on the custody of children.
The parent who is awarded custody of the children by the civil court should then have the right to convert the children, said Syed Husin.
He too described the cabinet decision as being politically motivated and as having overlooked problems that may arise.
For example, if a Hindu couple divorces because the wife converts to Islam and she gains custody of the children, they would have to be brought up as Hindus, going by the cabinet decision.
For this reason, it is necessary to determine custody rights before deciding on the children’s religion.
Syed Husin points out a case where its possible that a wife who converts will bring up kids who are non-Muslim if the cabinet directive is followed. Yes, possible. The permutations are limited to four possibilities – father or mother converting, and who gets the kids. So, it can be:
1. Father converts and gets custody – raises non-muslim children
2. Father converts and no custody – no problem
3. Mother converts and gets custody – raises non-muslim children
4. Mother converts and no custody – no problem
My views:
I think the problem starts when the intention to convert arises. At that point of time, a person may need counseling from an independent group or representatives from his own religious group. This will be protested as infringing on personal rights. On the other hand, it will help to ensure that the convert knows what he is getting into and the possible problems that will happen. Anyway, we can consider making it an “application” process also. In order to convert, the person must submit to divorce proceedings in civil court. Can only convert once the slate is wiped clean so that will be fair to the other spouse (imagine the guy who converts have “kosong empat” while the wife can’t remarry because status is still legally married). The question of alimony, children custody, and property division should be cleared before the conversion takes place.
Next, if one party has custody, does it automatically means that parent can unilaterally convert the children? If no, what if the parents cannot come to an agreement on what religion the kids will take up? The children then should maintain their status quo. What if father converts to Islam, mother remains Hindu. Children remain Hindu becomes both parents can’t come to an agreement. Suddenly, the mother converts to Christianity. How then? Father Muslim, mother Christian, children Hindu. How to avoid this? Perhaps the kids will be housed in an orphanage or center belonging to the particular religion (Hinduism in this case). If that’s the case, we end up fighting for religion instead of the children’s welfare.
So, possible solution is to say that the parent that gets custody can determine the religion of the children.
In the mean time, community groups must take immediate action to educate the community on the pros and cons of converting. If one really loves another religion, then its OK, and its not compulsory that you convert every offspring you have along with you.
