Lawyers: States' unilateral child conversions void if federal ban kicks in

Under Section 88A(2), a child born to parents who were initially of two different non-Muslim faiths shall be free to remain in either one of these religions. — Reuters pic
Under Section 88A(2), a child born to parents who were initially of two different non-Muslim faiths shall be free to remain in either one of these religions. — Reuters pic

KUALA LUMPUR, Dec 13 — Unilateral child conversions will likely become void when a proposed federal ban takes effect should state Islamic authorities ignore the ban, lawyers said.

Family law expert Balwant Singh Sidhu said that if the proposed inclusion of Section 88A to the Law Reform (Marriage and Divorce) Act 1976 (LRA) makes it clear that both parents' consent is required for a valid conversion of a child of a civil marriage, the other party who did not consent will succeed by getting the civil court to declare the conversion registered by state religious authorities as void.

"If state religious authorities still continue to convert children when the converted parent goes to them, without the consent of the other parent, after 88A is passed, then they would be going against a federal law, and the conversion may later be declared void by a civil court, so they would have acted in vain," the family lawyer with over 30 years of experience told Malay Mail Online yesterday when contacted.

Under the proposed list of amendments to the LRA tabled in Parliament late last month, Section 88A(1) says, among other things, that a child's religion will remain as the religion of both parties of a civil marriage before one of them converts to Islam, unless both parties agree on the child's conversion.

Under Section 88A(2), which also covers cases where one spouse becomes a Muslim convert, a child born to parents who were initially of two different non-Muslim faiths shall be free to remain in either one of these religions.

"As for 88A(2), it does seem incongruous. It seems to let a minor decide his religion, which goes against Article 12(4) and Section 89 of the LRA. Either the parents or the court should decide and 88A(2) should be omitted," he said.

Article 12(4) of the Federal Constitution places the decision of the religion in which a child is to be instructed in — among other things — in the hands of a "parent or guardian".

"If the Federal Court correctly interprets Article 12(4), that parent means both parents, that would be authoritative and bind everyone, including the states, and the Shariah courts. Any state law to the contrary would be void. That can be done fairly quickly, and we may not have to rush the amendments to the LRA, and that would settle at least that one issue for now," he said.

Balwant noted that since the LRA's existing Section 89 already grants the High Court powers to put conditions — such as the religion in which a child is to be brought up in — on custody orders, the court could either record a consent order if both parents agree, or make a decision if both parents do not agree on the child's conversion.

"If the non-converting spouse consents to the conversion of the child or children by the converting spouse, the civil court could record that in the custody order, to avoid future conflict. If the parties cannot agree, then the court decides. The power is already there in Section 89," he explained, noting that there will then be an official record of the parents' wishes.

Lawyer Andy Yong said that if the proposed LRA amendment of Section 88A requiring both parents' consent for a child’s conversion to Islam is passed, the actions of state religious authorities that allow unilateral child conversions would become "void ab initio", or invalid from the beginning.

But even with the LRA amendment in place, the only way a non-converting spouse can challenge the unilateral conversion of their children would be to go to the courts to seek a declaration that the conversion is invalid under the LRA, he said.

Yong said the state religious authorities will, however, seek to challenge the constitutionality of the LRA amendment, by arguing that the word “parent” in the Federal Constitution's Article 12(4) means either father or mother, and the Federal Court's decision in Subashini Rajasingam v Saravanan Thangathoray to justify the unilateral conversion.

Yong agreed that it would help if both parents of a civil marriage go to a civil court for a court order on the child's religion before the Muslim convert parent seeks to convert the child.

"Yes of course, but it has been proven so many cases that converting parent would not come to civil court," he said, adding that the Muslim convert parent would typically seek to rely on the constitutional provision of Article 121(1A) — which says the civil courts have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts — to justify their refusal to go to civil courts.

The best solution would be either through the amendment of Article 12(4) to expressly say consent of both parents is required or through the Federal Court's clarification of this clause in its upcoming decision on a case by Hindu mother M. Indira Gandhi, he said.

"Perhaps it will be ideal to add in s88A to state expressly that in the event if the religious authorities insist on the conversion, it will be void," Yong also added.

The lawyers disagreed that there would be a need for the introduction of penalties if state religious authorities fail to comply with the Section 88A requirement for both parents' consent when recognising or registering a child's conversion.

"There should not be a need for a penal sanction against state authorities to enforce Article 12 (4) and the new 88A. The federal government will have to sort things out with state governments if state governments do not follow a federal law," Balwant said.

Yong said laws cannot be used to punish either federal or state governments and the bodies under them for their decisions. The correct method instead is to challenge their actions in court, he said.

"What a party could consider is to challenge in court that the relevant body has acted ultra vires and claim for damages if he or she can proves losses," he said.

Civil liberties lawyer Andrew Khoo said it is "unlikely that the law will criminalise the act of conversion to Islam done unilaterally by a parent, since you may end up having to prosecute state religious officials".

Khoo said that he did not think that unilateral child conversion to Islam would automatically be null and void with the LRA amendment in place, but said the affected party would have to go to the civil court for a declaration that the conversion was unlawful.

"You would in all likelihood still have to go to court to nullify it. So it may not be much different from now, save that you have an express law that outlaws it.  Which is why amendments like the Perlis one are really unhelpful to the situation," he told Malay Mail Online when contacted yesterday.

He was referring to the Perlis state legislative assembly's changing of its state Islamic law which removed the need for both parents' consent for child conversion to Islam. Five other states and the Federal Territories also require only one parent's nod for a child's conversion to Islam.

Lawyer M. Kulasegaran disagreed with the need for penalties or for express provisions in the LRA to touch on the consequences of state religious authorities' failure to comply with Section 88A.

He pointed out that the LRA is not meant to be speculative and to exhaustively cover every single possible situation that may arise.

"These are the things that the Act cannot continue to speculate. It can't be totally taking care of 100 per cent," Kulasegaran, who is also Ipoh Barat MP, told Malay Mail Online.

He said he will raise various issues during parliamentary debates on the proposed LRA amendments, including the resolution of matters in civil marriages in the civil courts instead of the Shariah courts which only have jurisdiction over Muslims and Muslim marriages.

The next Parliament meeting will be in March next year.

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