Raja Aziz Addruse and Ding Jo-Ann
First published in The New Straits Times on 24 May 2009
THE recent cabinet decision to ban the conversion of children by one parent who has embraced Islam has been generally welcomed. In ruling that the children of a non-Muslim marriage must be brought up in the "common religion of the parents at the time of the marriage", if one of the parents converts to Islam, the cabinet has at last come to recognise that it is no longer tolerable to ignore a serious problem which has caused untold suffering and misery to innocent spouses.
The decision followed the challenge by a Hindu woman, M. Indira Gandhi, to her husband's conversion of their three children to Islam.
This was the latest of a number of cases in which people who have embraced Islam have also changed their children's religion without obtaining the consent, or in spite of the protests, of their non-Muslim spouses.
Attempts have been made over the years to try to resolve the problem. The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, for one, has been active in trying to get the government to address issues pertaining to conversions to Islam.
However, the response from the government and the authorities concerned has not been at all encouraging.
A proposal to set up an Interfaith Commission, made by a Steering Committee set up by the Bar Council to help resolve such problems, had to be shelved in July 2006 when then prime minister Datuk Seri Abdullah Ahmad Badawi publicly announced that all activities relating to the formation of the proposed commission should immediately cease because it was "creating unnecessary problems" and religious tension in the country had reached "a worrying level".
Discussing such controversial issues openly and without control would, he said, evoke emotions which would lead to "unwanted situations".
In August last year, senior government ministers made it clear, by their public statements, that the Bar Council should not proceed to hold a forum to discuss issues of religious conversion because such sensitive topics should only be discussed behind closed doors so as not to provoke misunderstanding.
No doubt, looking at it against that background, Sisters In Islam viewed the recent cabinet decision as "bold and progressive".
The problem arose from an amendment to the Federal Constitution made in 1988. A new Article 121(1A) provided that the civil courts "shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts".
Some judges have construed this as conferring upon the syariah courts exclusive jurisdiction to deal with all issues pertaining to conversion to Islam. As a result, they have frequently declined jurisdiction to hear the grievances of persons in the position of Indira Gandhi, even though they are non-Muslims.
In 2004, the High Court declined to entertain the application of Shamala Sathiyaseelan for a declaration that the conversion of her two children to Islam by her husband, who had converted to Islam, was null and void.
It held that it did not have the jurisdiction to rule on the status of the children as they had become Muslims and it was the syariah courts which could do so by virtue of Article 121(A) of the Constitution.
Moreover, it was only the syariah courts which had the expertise and the competence to decide on the status of the children. While acknowledging that Shamala, the children's mother, not being a Muslim, could not seek redress from the syariah court, the High Court was not prepared to look into her plight, suggesting that "it was for Parliament to provide the remedy".
People who convert out of Islam, too, face the same difficulty over jurisdiction. Soon Singh a/l Bikar Singh, who was born of Sikh parents and who had converted to Islam at the Perkim office in Alor Star while he was a minor and without the consent of his widowed mother, later renounced Islam.
His application for a declaration that he was no longer a Muslim was objected to by the Kedah Islamic Department on the grounds that the High Court had no jurisdiction over the matter. The constitutional issue of jurisdiction raised by the objection could not have been framed more clearly; but the issue was sidestepped by the Federal Court (to which the matter went up on appeal).
Instead, the court ruled that the jurisdiction over matters of conversion out of Islam, although not expressly provided to the syariah courts by the state enactment, could be implied.
The reluctance of the civil courts to assume jurisdiction has led to the present uncertainty in the law and given rise to the need for the cabinet decision, presumably to be implemented by the promulgation of appropriate legislation.
But resort to legislation to provide the remedy is only warranted if there is a gap or lacuna in the Constitution, a constitutional vacuum, which requires legislative interference.
To those who regard the Federal Constitution as providing for comprehensive rule of government, it is difficult to believe that there is such a vacuum.
The civil courts' denial of their jurisdiction over matters involving forced conversion of children of non-Muslim marriage, and conversion out of Islam generally, is tantamount to an abdication of judicial duty. They need urgently to understand and appreciate that cases like that of Shamala could, and often do, give rise to overlapping issues.
Where there is an overlap, allegations of infringements of the right to freedom of religion, for example, are for the civil courts to decide.
Looking at the cases where jurisdiction has been declined, the courts seemed to have been overly pre-occupied with interpreting Article 121(1A) (that civil courts do not have jurisdiction in respect of any matter within the jurisdiction of the syariah courts) to explain why the syariah courts should have jurisdiction.
But they have not given much consideration to their jurisdiction to determine on the individual's guaranteed right to freedom of religion.
Had they done so, their conclusion would certainly have been different and there would not have been any necessity to appeal for government intervention.
The cabinet decision, laudable though it is, may not be easy and may take time to implement. The more expedient way to deal with the problem may be for the courts to re-examine their position on the issue of jurisdiction.
It is not too late in the day for the civil courts to step in to try and solve the serious problems their hands-off policy have created.
The decision followed the challenge by a Hindu woman, M. Indira Gandhi, to her husband's conversion of their three children to Islam.
This was the latest of a number of cases in which people who have embraced Islam have also changed their children's religion without obtaining the consent, or in spite of the protests, of their non-Muslim spouses.
Attempts have been made over the years to try to resolve the problem. The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, for one, has been active in trying to get the government to address issues pertaining to conversions to Islam.
However, the response from the government and the authorities concerned has not been at all encouraging.
A proposal to set up an Interfaith Commission, made by a Steering Committee set up by the Bar Council to help resolve such problems, had to be shelved in July 2006 when then prime minister Datuk Seri Abdullah Ahmad Badawi publicly announced that all activities relating to the formation of the proposed commission should immediately cease because it was "creating unnecessary problems" and religious tension in the country had reached "a worrying level".
Discussing such controversial issues openly and without control would, he said, evoke emotions which would lead to "unwanted situations".
In August last year, senior government ministers made it clear, by their public statements, that the Bar Council should not proceed to hold a forum to discuss issues of religious conversion because such sensitive topics should only be discussed behind closed doors so as not to provoke misunderstanding.
No doubt, looking at it against that background, Sisters In Islam viewed the recent cabinet decision as "bold and progressive".
The problem arose from an amendment to the Federal Constitution made in 1988. A new Article 121(1A) provided that the civil courts "shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts".
Some judges have construed this as conferring upon the syariah courts exclusive jurisdiction to deal with all issues pertaining to conversion to Islam. As a result, they have frequently declined jurisdiction to hear the grievances of persons in the position of Indira Gandhi, even though they are non-Muslims.
In 2004, the High Court declined to entertain the application of Shamala Sathiyaseelan for a declaration that the conversion of her two children to Islam by her husband, who had converted to Islam, was null and void.
It held that it did not have the jurisdiction to rule on the status of the children as they had become Muslims and it was the syariah courts which could do so by virtue of Article 121(A) of the Constitution.
Moreover, it was only the syariah courts which had the expertise and the competence to decide on the status of the children. While acknowledging that Shamala, the children's mother, not being a Muslim, could not seek redress from the syariah court, the High Court was not prepared to look into her plight, suggesting that "it was for Parliament to provide the remedy".
People who convert out of Islam, too, face the same difficulty over jurisdiction. Soon Singh a/l Bikar Singh, who was born of Sikh parents and who had converted to Islam at the Perkim office in Alor Star while he was a minor and without the consent of his widowed mother, later renounced Islam.
His application for a declaration that he was no longer a Muslim was objected to by the Kedah Islamic Department on the grounds that the High Court had no jurisdiction over the matter. The constitutional issue of jurisdiction raised by the objection could not have been framed more clearly; but the issue was sidestepped by the Federal Court (to which the matter went up on appeal).
Instead, the court ruled that the jurisdiction over matters of conversion out of Islam, although not expressly provided to the syariah courts by the state enactment, could be implied.
The reluctance of the civil courts to assume jurisdiction has led to the present uncertainty in the law and given rise to the need for the cabinet decision, presumably to be implemented by the promulgation of appropriate legislation.
But resort to legislation to provide the remedy is only warranted if there is a gap or lacuna in the Constitution, a constitutional vacuum, which requires legislative interference.
To those who regard the Federal Constitution as providing for comprehensive rule of government, it is difficult to believe that there is such a vacuum.
The civil courts' denial of their jurisdiction over matters involving forced conversion of children of non-Muslim marriage, and conversion out of Islam generally, is tantamount to an abdication of judicial duty. They need urgently to understand and appreciate that cases like that of Shamala could, and often do, give rise to overlapping issues.
Where there is an overlap, allegations of infringements of the right to freedom of religion, for example, are for the civil courts to decide.
Looking at the cases where jurisdiction has been declined, the courts seemed to have been overly pre-occupied with interpreting Article 121(1A) (that civil courts do not have jurisdiction in respect of any matter within the jurisdiction of the syariah courts) to explain why the syariah courts should have jurisdiction.
But they have not given much consideration to their jurisdiction to determine on the individual's guaranteed right to freedom of religion.
Had they done so, their conclusion would certainly have been different and there would not have been any necessity to appeal for government intervention.
The cabinet decision, laudable though it is, may not be easy and may take time to implement. The more expedient way to deal with the problem may be for the courts to re-examine their position on the issue of jurisdiction.
It is not too late in the day for the civil courts to step in to try and solve the serious problems their hands-off policy have created.
Raja Aziz is a past president of the Bar Council and the Human Rights Society; Ding is a Kuala Lumpur-based lawyer.