Despite Indira ruling, unilateral child conversions still alive in Malaysia

Indira Gandhi speaks during a press conference in Kuala Lumpur March 28, 2018. Indira concurred that unilateral religious conversions will continue to be commonplace and more parents and children will get hurt in such cases. — Picture by Firdaus Latif
Indira Gandhi speaks during a press conference in Kuala Lumpur March 28, 2018. Indira concurred that unilateral religious conversions will continue to be commonplace and more parents and children will get hurt in such cases. — Picture by Firdaus Latif

KUALA LUMPUR, July 12 ― In January this year, the Federal Court delivered a landmark ruling overturning the unilateral conversion of Hindu mother M. Indira Gandhi’s three children into Islam, igniting hope in many who faced the same predicament.

About three months later, the hope was rekindled after Pakatan Harapan’s (PH) victory in the 14th general election.

But the reality on the ground is more sobering.

Yet another non-Muslim parent takes up a fight in court today to nullify the conversion of his two children into Islam, which was done without his consent under allegedly dubious circumstances.

Shah Alam-based ethnic Chinese businessman Tan, 46, (not real name), decided to amicably split with his wife of nine years in late 2015 after two to three years of a tumultuous relationship.

The couple has two children ― a daughter who was then eight years old and a son aged four.

“She wanted to divorce for a very shocking reason. She got her calling from Allah to be a Muslim,” said the Terengganu-born Buddhist, who sometimes lapsed into the East Coast accent when speaking in Malay.

“I asked her out of curiosity: ‘Would it be any different if I were to convert as well? Would we stay married?’ She said ‘no’ So it was not about religion,” Tan told Malay Mail, explaining that he had custody of their children initially.

The planned divorce quickly turned sour. Tan said his estranged wife started adding more and more terms into their divorce settlement, such as allowing the children to be converted into Islam.

Tan disagreed, and it was around this point that he said she became more callous in her attempt to gain custody.

Malay Mail sighted a copy of the police report lodged by Tan’s wife dated February 2016, when she alleged that Tan’s maid had molested the son since she was no longer home.

Her allegation was refuted by the Social Welfare Office Shah Alam in a letter dated a month later. It then discharged the son back to Tan.

In a separate police report lodged by Tan and a subsequent medical report sighted by Malay Mail dated December 2016, he complained that his wife had physically attacked him repeatedly with a fork when he was fetching the children for his turn at custody.

She pleaded guilty over the assault in the Petaling Jaya Magistrates’ Court yesterday and was fined RM1,000 under Section 352A of the Penal Code that handles criminal force by a spouse.

Kids converted outside registrar’s jurisdiction

Tan finally filed a divorce petition in the Shah Alam High Court in May 2016. By this time, she was a Muslim for almost half a year

In April this year, the court granted sole guardianship, custody, care and control to the ex-wife, but scant explanation was given for the decision. The case is currently pending an appeal in the Court of Appeal.

But it was only when she filed her affidavit for the divorce that Tan found out his two children had been converted into Islam by the Federal Territories Registrar of Muslim Converts without his agreement.

Based on court documents sighted by Malay Mail, Tan will argue in the Kuala Lumpur High Court today that among others, the conversion was ultra vires since it was done by the Federal Territories Islamic Religious Department (Jawi) when the children’s mother was a Selangor resident.

The Administration of Islamic Law (Federal Territories) Act 1993 states that one of the conditions for unilateral conversion into Islam was that the applicant must reside in Kuala Lumpur, Putrajaya, or Labuan.

Tan alleged to Malay Mail that his ex-wife was then, and is still, residing in Bukit Jelutong, Selangor, and had used a false address of an acquaintance for the purpose of the conversion.

Providing false information is an offence under the abovementioned Act, punishable by a fine of not more than RM1,000, prison not more than six months, or both.

Besides the Jawi director-general, Tan’s suit also named the registrar, the Ministry of Education director-general, the government of Malaysia, and his ex-wife.

Malay Mail could not yet reach Tan’s ex-wife’s lawyers for comments.

Losing their religion, but also ethnic identity

For Tan, he would not mind if his children decided to embrace Islam or any other religion when they turned 18, although he would prefer if they were brought up in their original faith.

“My stand to my kids is always they should be with the religion they were born with before they were unilaterally converted,” he said, explaining that he has periodically discussed this matter with the children.

But his main worry now is their education, insisting that they grow up with a “nationalistic” and global point of view, rather than a parochial one.

He wants her daughter, now 10, to continue her education in a vernacular Chinese school, although he said she has intimated her desire to go to an international school.

In the court document, Tan also expressed his concern that his son, now 6, who would now start his primary education in a public school, would be placed in Islamic religious classes and take the subject in examinations.

“Just like Malays know their Malay language, a Chinese should know the Chinese language. I want kids to know the language,” Tan said.

“In general, my thought of Chinese schools is they have very good discipline. When the kids come home, they must finish homework first. That is the mentality of Chinese schools I like that, I grew up that way.

“I’m just hoping that I can still instill their identity as Chinese,” he added.

He also suspects purported “hidden hands” behind his ex-wife’s decisions.

Pointing to details of her bank accounts disclosed in the divorce proceedings, Tan claimed she has not had to pay a sen to her numerous lawyers over the years ― and a party may have been bankrolling her.

He named several Islamic bodies and missionary agencies, which Malay Mail will not publish since we could not confirm the veracity of his claim.

“I do not blame religion for it. Although I do have strong suspicion that someone who is representing religion is causing all this, putting in check a lot of ego, fear, financial help, all kinds of things in my ex-wife,” he lamented.

Wither the rights of children?

The Barisan Nasional government had previously proposed to ban unilateral child conversions by amending the Law Reform (Marriage and Divorce) Act 1976, but dropped the initiative following pressure from certain Islamic groups.

The coalition said that it was bound by a previous Federal Court ruling that interpreted the provision of “parent” in Article 12(4) of the Federal Constitution ― which states that the religion of a person below 18 shall be decided by “his parent” ― as a single parent, and not both.

After the Indira ruling, former prime minister Datuk Seri Najib Razak had pledged to consider re-introducing a legal amendment to ban unilateral child conversions to Islam, but nothing was tabled in the last Parliament meeting before his coalition’s defeat in the May 9 election.

PKR’s then Alor Setar MP Gooi Hsiao Leung had planned to submit a private member’s Bill seeking to ban unilateral child conversions, but he is now a Penang state assemblyman after he won the Bukit Tengah state seat.

Parliament is set to convene next Monday.

Pressure is mounting on Putrajaya to table a Bill to ban unilateral child conversions, especially after it was publicly criticised for its recent handling of a child marriage case involving a 11-year-old girl in Kelantan.

Women’s rights group Sisters in Islam said the judges in the Indira case ruled that any conversion of non-Muslim children must get the consent of both parents, but the lack of progress on legislating the restriction means such cases may yet still repeat.

“Despite the landmark Indira Gandhi case, there has been little progress in addressing existing loopholes in unilateral conversion laws in Malaysia,” its communications officer Majidah Hashim told Malay Mail.

“Just as in the case of the recent child marriage, we are concerned that there may be cases that fall through the cracks and victims continue to be in limbo over redress mechanisms.”

Ipoh Barat MP M. Kulasegaran, who was Indira’s lawyer in the landmark case and is now the human resources minister, had pledged to solve the matter in May, saying resolving the issue of unilateral religious conversion of minors peacefully was part of the pact’s manifesto.

Speaking to Malay Mail, Indira concurred that unilateral religious conversions will continue to be commonplace and more parents and children will get hurt in such cases.

“Marriage is between adults. It does not mean when the union breaks down, children have to suffer,” she said, suggesting that any parents who are in her shoes to be strong.

“Keep on highlighting the case so that the public do not forget and pressure the government to amend the Act to include Section 88A,” she added, referring to the proposed provision to ban unilateral child conversions.

As for Tan, his thoughts were also with other parents, whose children were forcefully converted into Islam, but felt powerless when going up against the status quo.

“I have spent a lot of legal costs to defend my rights. Just imagine if the same thing happens to those who can’t afford it,” he said.

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