THE Muslim Lawyers Association (MLA) has expressed concern over today’s landmark ruling by the Federal Court on unilateral conversion.

It said the judgment could be used by the government to bring back Clause 88A of the Law Reform (Marriage & Divorce) Act 1976 (LRA). 

Clause 88A stated the religion of the child “shall remain as the religion of the parties to the marriage prior to the conversion”.

It was dropped from the LRA because it contravened the Federal Constitution.

MLA president, Zainul Rijal Abu Bakar said today’s decision could set a precedent in unilateral conversion cases, saying the decision was not consistent with previous court rulings. 

“I’m worried this will be used as an excuse for the government to reintroduce clause 88A of the Law Reform (Marriage and Divorce) Act 1976, which has been rejected by the Muslim community.

“Muslims need to show their unity in rejecting any attempt to reintroduce clause 88A,” he said in a statement today. 

Today’s unanimous decision by the apex court stated the conversion of M. Indira Gandhi’s three children to Islam was null and void, requiring the consent of both parents and the constitutional word “parent” was a case of being lost in translation. 

On August 7, the government withdrew LRA which was scheduled for its second reading after being tabled for the first time in November 2016.

On the same day it was withdrawn, Azalina Othman Said said in a statement the new bill would be tabled without Clause 88A.

She said the fresh amendments would be in line with the courts’ decisions on the interpretation of the Article 12(4) of the Federal Constitution, which states the religion of a person under the age of 18 shall be decided by his parent or a guardian.

The bill was then passed on August 10 minus Clause 88A, which drew criticism from opposition leaders.

The proposed amendment to LRA was drafted following several custodial battles involving Muslim and non-Muslim parents, including Indira’s and her former husband, K. Pathmanathan, who converted to Islam.

Zainul also called for the amendments to state constitutional laws (Undang-Undang Tubuh), urging all state governments to follow Terengganu’s constitutional laws which placed the Shariah courts under the state’s constitution. 

“By doing so, Shariah courts will be seen as at par with civil courts,” he said, adding all laws that restricted Shariah courts to only Muslims should also be amended to allow non-Muslims to appear in Shariah courts. 

“Laws on conversion should also be amended, especially the procedure of conversion to Islam for children. 

“Children who can’t talk yet don’t need to express the ‘Shahadah’ to convert to Islam, it’s enough that the parents are Muslims. 

Zainul added they accepted the decision made by a competent court. 

“The Muslim community will have to wait for another case to be heard to set side this judgment,” he said. 

Shariah Lawyers Association of Malaysia president Musa Awang said he was surprised by the decision, citing the case of Subashini Rajasingam vs Saravanan Thangathoray, where the Federal Court ruled in 2007 a single parent could convert a child aged below 18. 

“The Federal Court’s ruling will have a big impact on similar cases in the future.

“However, the children still have the rights to choose their own religion without their parents’ consent once they reach the age of 18, as stated in the Section 106 of the Administration of the Religion of Islam (Perak) Enactment 2004,” he told The Malaysian Insight. 

Sistes in Islam, meanwhile, said justice had been served for Indira and her family, saying the ruling has also given Malaysia the clarity and certainty in the issue of unilateral conversion of minors. 

“The Federal Court has given a clear judgment on the jurisdictional uncertainties between the civil and Syariah Courts,” the group said, applauding the decision. 

The group said most importantly, the Federal Court stated the civil courts have jurisdiction over Constitutional issues, interpretation of laws and judicial reviews of administrative actions, and this function cannot be abrogated or altered by Parliament.

“It is the cornerstone of a constitutional democracy. Malaysia is a country which abides by the rule of law, and judgments such as this show clearly that the rule of law prevails,” it said. 

“Today’s decision signifies the end of a tumultuous and arduous journey of Indira and her family,” it said. – January 29, 2018.