Constitution must be amended first, say Shariah lawyers

PETALING JAYA, Nov 23 — A proposed amendment of the Law Reform (Marriage and Divorce Act) must be preceded by an amendment to the Federal Constitution, say Shariah lawyers.

Faisalludin Mohamat Yusuff agreed with the overall proposal but said including Section 88A, a new clause, was unconstitutional.

“Article 12(4) of the Federal Constitution states the religion of a child under the age of 18 years shall be decided by one of his or her parents or guardian,” he said.

“The proposed amendment states the consent of both parents is needed to decide on the child's  religion, but the Constitution states only one parent is needed.”

Faisalludin said an alternative method could be used to decide a minor’s religious status such as mediation or negotiation.

However, he agreed with allowing the converted Muslim party in a marriage to apply for divorce and have other matters resolved in the civil court.

Faisalludin said custodial rights could also be decided by the civil court even if the child had been converted to Islam but was cared for by a non-Muslim parent.

“It is acceptable if a non-Muslim mother is given the custody over her Muslim child under the civil court as mothers usually provide better care for the child,” he said.

Another Shariah lawyer, Datuk Akbardin Abdul Kader, suggested the Attorney-General study whether the amendment violated any constitutional provision.

Akbardin said allowing both parents to decide on the child’s religion was fair and morally right move as it gave the non-converting party a say.

“In most of these cases, the dispute takes place because the couple is already going through matrimonial problems,” he said.

“Some of the parents convert and use it as a device to take away the children from the non-converting parent.”

Emphasising that there is no compulsion in Islam, Akbardin said he had witnessed many cases where a parent had not sincerely converted and had compelled his or her child to convert to win custodial rights.

“Even if the constitution allows unilateral conversion, it is best that both parents have a say and to not forcibly convert the child without the consent of both parties,” he said.

“The decision needs to be done collectively and not unilaterally.”

Proposed amendments to the Law Reform Act were tabled in parliament to prevent unilateral conversion of a minor into Islam yesterday.

The proposed amendment grants power to civil courts even if one spouse converts to Islam, enabling Muslim converts to petition the civil courts for divorce.

The issue of unilateral conversions have raised controversy when M. Indira Gandhi and S. Deepa both faced lengthy court battles to gain custody and reverse the unilateral conversion of their children by their Muslim convert ex-husbands.

The amendments also state that if a person who has converted to Islam dies before the non-Muslim civil marriage is dissolved, the matrimonial assets shall be distributed by court “to interested parties”.

MIC Youth chief Datuk Sivarraajh Chandran hailed the proposed amendments as a much needed legal breakthrough which would resolve such cases.

“The amendments also state a child born into one religion shall remain in it until age 18, then he or she can choose their religion freely,” he said.

“This is fair and should end conversation issues and court battles once and for all. It recognises a child must always have a say in the religion he or she finally chooses.”

Sivarraajh said the amendments would go a long way to end the thorny issue of unilateral conversation that had bedevilled race relations for close to five decades.

“It finally ends the conversion controversies, unending court cases and comes as a relieve to parents caught in conversion battles,” he said.