Trevor Padasian discusses the Law Reform (Marriage and Divorce)(Amendment) Bill 2016.
 
The unilateral conversion of minor children by their converted parent, typically the father, without the consent of the other parent is not unique to Malaysia. However, our multi-racial and multi-religious society is conducive to the increased frequency of this problematic legal phenomenon. This is illustrated well in two recent high-profile cases.
 
THE INDIRA GANDHI CASE
 
The first is Indira Gandhi a/p Mutho v Pengarah Jabatan Islam Perak & Ors [2013] 5 MLJ 552 (“Indira Gandhi”). In this case, the Ipoh High Court qua Family Court, in dealing with the unilateral conversion of minor children to Islam by their converted father, was compelled to wade through the complex and thorny interface between civil law and Islamic law in Malaysia. In the event, in a soundly reasoned decision delivered on 25 July 2013, the High Court quashed the minor children’s conversion certificates obtained by the converted father (without the knowledge or consent of the non-converting mother) and granted a declaration that the minor children had not been converted.
 
However, the Court of Appeal [Pathmanathan Krishnan v Indira Gandhi Mutho & Other Appeals [2016] 1 CLJ 911 (“Indira Gandhi on Appeal”)] by a 2:1 majority, albeit with a strong dissent, reversed the High Court decision on 30 December 2015.
 
Two stand-out issues in Indira Gandhi as decided by the High Court were, firstly, the right of the non-converting parent to be heard before the minor children can be converted and, secondly, the Federal Constitution did not take away the powers of the civil High Courts the moment a matter came within the jurisdiction of the Syariah Courts, the latter being merely a creature of state law, without the jurisdiction to decide on the constitutionality of matters said to be within its exclusive purview.  
 
The appeal to the Federal Court was heard in late 2016 but the apex court has yet to issue its decision.
 
THE DEEPA CASE
 
In the second case, Viran Nagapan v Deepa Subramaniam & Other Appeals  the Federal Court, although confirming that a converted spouse cannot use his conversion to Islam to escape responsibilities under the Law Reform (Marriage and Divorce) Act 1976 (“Act”), ordered the custody of one of the children to be given to the non-converting mother and custody of the other child to be given to the converted father after interviewing the two children in question. The case arose when that other child had been “taken away” by the father from the mother who had been given custody of both children.
 
THE PROPOSED AMENDMENTS
 
With this interface between civil law and Islamic law in Malaysia as a background, Parliament has introduced the Law Reform (Marriage and Divorce) (Amendment) Bill 2016 (“Bill”) to address some of the main issues that arise from unilateral conversion.
 
The Bill was tabled for its First Reading before the Dewan Rakyat of the Malaysian Parliament on 21 November 2016 and debate is scheduled to continue when Parliament reconvenes in July 2017.
 
The Explanatory Statement
 
According to the Explanatory Statement, the Bill seeks to “address issues arising out of the conversion to Islam of one party to a marriage.” The Explanatory Statement further states that the Bill seeks to give the right to the converting spouse to file a petition for divorce under the Act which currently only gives the non-converting spouse the right to petition for divorce. Oddly, no mention is made in the Explanatory Statement of the right of the non-converting spouse in relation to the conversion of the minor children of the marriage.
 
The Bill addresses two aspects of conversion matters. First, the prohibition of unilateral conversion of minor children and second, the other less controversial matters arising from such conversion, namely the expansion of right of access to the civil courts and succession-related matters.
 
Access and succession matters
 
Clause 4 of the Bill proposes to amend section 51(1) of the Act to enable a converted spouse or both a converted spouse and a non-converting spouse to present a petition for divorce. Currently, only a non-converting spouse may do so in the event of conversion to Islam by the other spouse.
 
In addition, Clause 5 of the Bill introduces a new section 51A to ensure that the next-of-kin of the converted spouse who subsequently dies before the non-Muslim marriage is dissolved will be entitled to the matrimonial assets. Factors which the court is to take into account in making the distribution include the extent of the contributions made towards the acquisition of the matrimonial assets, the debts owing, the duration of the marriage and the needs of the children.
 
Unilateral conversion prohibited
 
Clause 7 of the Bill proposes to introduce a new section 88A to the Act. The new provision emphatically and unequivocally states:

“Where a party to a marriage has converted to Islam, the religion of any child of the marriage shall remain as the religion of the parties to the marriage prior to the conversion, except where both parties to the marriage agree to a conversion of the child to Islam, subject always to the wishes of the child where he or she has attained the age of eighteen years.” 

 
It has been suggested by certain quarters that if the Bill becomes law, this new provision may in one fell swoop provide a cogent response and resolution to the arguments by the converted spouse in Indira Gandhi justifying the unilateral conversion in that case and resolve the issues in dispute therein. The principal arguments in Indira Gandhi are as follows:
 
(1)     The fact that the conversion of the father and his children was within the jurisdiction of the Syariah courts which has exclusive authority to decide if a person is a Muslim (relying on a Federal Court decision of Subashini Rajasingam v Saravanan Thangathoray & other appeals [2008] 2 CLJ 1 (“Subashini”)) and may not be disputed by the non-converting mother.
 
(2)     The Syariah Courts are of equal standing to the Civil Courts by virtue of Article 121(1A) of the Federal Constitution.
 
(3)     Most problematic of all is the contention that the definition of “parent” in Article 12(4) of the Federal Constitution refers to a single parent. Article 12(3) provides:
 
“No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.”
 
Article 12(4) provides:
 
“For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.”
 
(4)     In the Bahasa Malaysia version (which is the authoritative text by virtue of Article 160B of the Federal Constitution), the word used is “ibu bapa” instead of “kedua ibu bapa”. Therefore, the singular instead of the plural would be operative. This was one of the main planks of reasoning of the Federal Court’s majority decision in Subashini on 27 December 2007.
 
The proposed new section 88A is in line with, if not quite reinforcing, the views of the High Court in Indira Gandhi, the dissenting Federal Court judge in Subashini and the dissenting Court of Appeal judge in Indira Gandhi on Appeal. The High Court in Indira Gandhi held that the unilateral conversion, amongst others, violated natural justice, the rights to equality and freedom of religion entrenched in the Federal Constitution and international norms and conventions relating to children. According to the dissenting judge in Indira Gandhi on Appeal:
 
“Syariah laws in this country are quite straight-forward and does not infringe the rights of non-Muslims in any manner and a just decision can be reached if counsels [sic] are sufficiently learned in civil, criminal, constitutional and Syariah law and prepared to balance the rights of the parties and/or judicial principles, not only with the Federal Constitution but also with the Rukun Negara to achieve a just result … The soul of the Rukun Negara is to uphold the rule of law and respect each other’s rights and not to simply take refuge on constitutional arguments alone.”
 
The dissenting Federal Court judge in Subashini was of the view that the non-converting wife in that case had the right to prevent the conversion of their children and to apply for an injunction to prevent the conversion.
 
THE GATHERING STORM
 
The move to resolve the issues on unilateral conversion by legislation was made public by the Prime Minister Datuk Seri Najib Razak when he announced on 25 August 2016 that amendments will be made to the Act at the next session of Parliament to resolve these problems [The Sun Daily, 25 August 2016]. As promised, the Bill was duly tabled for its First Reading in the Dewan Rakyat on 21 November 2016 on the premise that it will be debated by Parliament at its meeting in 2017.
 
The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) [The Sun Daily, 21 November 2016] and the Human Rights Commission of Malaysia (Suhakam) [Malay Mail Online, 6 December 2016] lauded and welcomed the proposed amendments.
 
Barely a week later, the Perlis State Legislative Assembly amended the State’s Administration of the Religion of Islam Enactment 2006 to allow unilateral conversion of children to Islam [The Star Online, 10 December 2016]. The Perlis Mufti expressed concern that the amendments by the Perlis State Legislative Assembly went against a fatwa issued in 2015 by the Perlis Mufti Department which, according to the Mufti, states that a child of a convert need not embrace but may receive teachings on Islam from the Muslim parent [The Star Online, 10 December 2016].
 
At the same time, the Pahang Mufti said that the Pahang Administration of Islamic Law Enactment 1991 provides that the minor child of a convert is to follow the religion of the parent to whom custody is granted by the civil courts [The Star Online, 10 December 2016].
 
The debate receded as the Malaysian Parliament went into recess in late December 2016, only to resurface as Parliament reconvened in early April 2017. On 3 April 2017, the Perak Mufti urged the Government to postpone the tabling of the Bill on grounds that the proposed amendment, specifically on unilateral conversion, was unconstitutional and contrary to Islamic laws. The Perak Mufti also claimed that the proposed prohibition of unilateral conversion was against a fatwa issued in 2009 which stated that if either a mother or father converted to Islam, their minor children would automatically become Muslims [The Star Online, 5 and 7 April 2017].
 
In a somewhat peculiar response and an affront to the constitutional right of freedom of speech, the Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia called on those who are not lawmakers to cease issuing statements on matters currently being discussed in Parliament The Sun Daily, 4 April 2017].
 
The Deputy Prime Minister, Datuk Seri Dr. Zahid Hamidi, in an immediate response was reported as confirming that the Government “will stand firm on its decision to legally prohibit the unilateral conversion of children to Islam” [The Sun Daily, 4 April 2017].
 
However on 5 April 2017, in a remarkable volte face, the Second and Third Readings of the Bill were postponed to the next session of Parliament in July 2017 upon a motion proposed by Dato’ Sri Azalina Dato’ Othman Said, Minister in the Prime Minister’s Department.
 
The Deputy Prime Minister explained that the postponement of the Bill “was to allow for the bill to be studied in detail and to get feedback from relevant quarters and experts to avoid conflict with existing fatwa and the Federal Constitution.” He added, “The government is not backtracking. Although studies have been done, the government’s stand is that the Act … needs to be reviewed so that the issue of unilateral conversion no longer becomes a polemic that could be detrimental to the country” [The Sun Daily, 6 April 2017].
 
It is troubling that no deadline has been specified for the completion of the review of the Bill and consultation and engagement with the relevant stakeholders [The Sun Daily, 6 April 2017]. It also remains to be seen whether the proposed new section 88A will be tabled at the forthcoming meeting of Parliament in its existing form or in a modified form.

CONCLUSION

 
Unless a middle ground that is acceptable to Muslims and non-Muslims is found and incorporated into the proposed new section 88A of the Act, its passage through Parliament will be highly contentious. If passed in its existing form, it is likely to be challenged in the Malaysian Courts on two grounds. First, that the prohibition of unilateral conversion is unconstitutional in view of the interpretation given to Article 12(4) by the majority of the Federal Court Judges in Subashini. Second, that the Bill contravenes the provisions of the Islamic Law Enactments and the fatwa issued by the muftis of certain States.
 
The observations of the learned Judicial Commissioner in Indira Gandhi apply equally to the proposed amendments in that they do not constitute “a victory for anyone but a page in the continuing struggle of all citizens to find that dynamic equilibrium in a country of such diverse ethnicities; pursuing peace in less than a homogeneous society, giving space to one another where religious sensitivities are concerned, tolerance and respect to our neighbours in pursuit of the truth and reality.”