Friday, July 26, 2013

Bar Council to state governments: Repeal enactments on unilateral conversions

Bar Council to state governments: Repeal enactments on unilateral conversions

July 26, 2013 UPDATED: July 26, 2013 07:49 pm
PETALING JAYA, July 26 — State governments should take heed of yesterday’s High Court decision declaring unilateral religious conversions “unconstitutional” and repeal any state enactment that legalises this, Bar Council president Christopher Leong said today.

In lauding the landmark decision by the Ipoh High Court, Leong pointed out that there have been many such legal cases in the past that have plagued families and caused “social injustice”.

“The Malaysian Bar welcomes the decision of the High Court in Ipoh,” he told The Malay Mail Online.

“It is incumbent on the various states that have the unconstitutional provisions for unilateral conversion to take immediate steps to repeal these provisions in their respective state enactments,” Leong added.

In a landmark decision yesterday, Ipoh High Court Judicial Commissioner Lee Swee Seng declared the conversion certificates of M. Indira Gandhi’s three children null and void after finding that their unilateral conversion to Islam was “unconstitutional” and against natural justice.

The three children — Tevi Darsiny, 16; Karan Dinish, 15 and Prasana Diksa, 5  — were converted to Islam in 2009 by their father, Muslim convert Mohd Ridzuan Abdullah, without their mother’s consent.

On April 3, 2009, Mohd Ridzuan had allegedly taken the birth certificates of his three children and converted them without Indira’s knowledge.

Since then, she has been fighting to annul the conversion, a struggle made even more complicated by a messy custody battle, which had at one point saw her lose guardianship of her youngest child Prasana, when she was merely two-years-old.

When arguing her case, Indira has been repeatedly pointing out that her children’s conversion had been without her or her children’s presence or knowledge.

“Although the court has ruled in Indira’s favour, it is heart rending that as a mother she has not seen her baby daughter for 5 years and remain in the dark as to when she will be able to do so again,” Leong noted today.

Speaking to The Malay Mail Online yesterday, lawyer M. Kulasegaran said High Court Justice Lee had in his judgment cited provisions in the Convention to Eliminate All Forms of Discrimination Against Women or CEDAW, which Malaysia ratified in 1995.

The High Court Justice reportedly pointed out that the convention protects the child’s identity, particularly in matters of race and religion, and guarantees equality to both men and women in family matters.

The judge noted that the Malaysian government could not merely ratify the convention on the international sphere but ignore it in national laws.

“This decision is no victory for anyone, but we have to learn to live in harmony,” Justice Lee had later said, according to Kulasegaran.

Muslim women’s group Sisters in Islam (SIS) also praised the judge’s decision today, saying it guarantees equality to both men and women when it comes to their children, particularly concerning religion.

“It’s decisions like these that will uplift the name of Islam in this country because they reaffirm that Islam cannot be abused by parties as a means to subvert ones responsibilities under civil law,” SIS programme manager Suri Kempe told The Malay Mail Online via a text message.

Custodial tussles in cases of unilateral child conversions have been a growing concern over the years and provide a high-profile glimpse of the concerns of Malaysia’s religious minorities over the perceived dominance of Islam in the country.

It also highlights the complications of Malaysia’s dual legal systems where Muslims are bound by both civil and syariah laws, the latter of which do not apply to or recognise non-Muslims.

Suri highlighted a case in 2002 concerning Shamala, a mother of two was unable to fight for her children’s custody under Syariah court as when it comes to a converted Muslim child, the custody is given to the Muslim party by default.

“There have also been cases where husbands, upon conversion, are absolved from paying maintenance on the premise that they are now Muslim and therefore not beholden to provide maintenance to his non-Muslim family.

“By right, children must not be converted unilaterally (as per the 2009 cabinet decision) and the non-converting spouse has the right (upon divorce) to receive maintenance for herself and the children, as provided for in civil law,” she added.

Lawyers and rights groups agreed today that Indira’s historic win yesterday marks a major milestone in Malaysia’s inter-religious relations, which have suffered greatly over the years due to inconsistent policies and overlaps in legal jurisdictions.

The issue has also been highly politicised due to Malaysia’s Muslim-majority population.

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