Monday, November 17, 2014

Urgent, satisfactory and permanent solution needed for unilateral religious conversions of minors

Speech by M Kula Segaran at the Forum on Unilateral religious conversion of minors held in Penang on Sunday, 16 th  Nov, 2014

Urgent, satisfactory and permanent solution needed for unilateral religious conversions of minors

One of the thorniest issues among the Malaysian communities is the unilateral religious conversion of children by one parent. Frequently it is done without the knowledge and consent of the other parent or the children like in the case of Indira Gandhi in Ipoh

In 2009, Patmanathan without the knowledge of his wife Indira Gandhi, converted into Islam and took the name Riduan Abdullah. Subsequently Riduan went further and converted his three children (all minors) without the children’s presence and a certificate of conversion was issued by the Perak Islamic authorities.
In our country we have the non Muslims to be governed by the Law Reform (Marriage & Divorce) Act 1976 and the Muslims to be under the Jurisdiction by the syariah law of each respective state Muslim enactment.

Article 12(3) of the Malaysian Federal Constitution states: ‘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’.  And Article 12(4) states: ‘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.
These two articles are read with Article 160 in addition (Interpretation provision) and the Eleventh Schedule, which states, inter alia, that ‘words in the singular include the plural, and words in the plural include the singular’. Further, section 5 of the Guardianship of Infants Act 1961 gives both parents equal parental rights and authority in relation to the custody or upbringing of the infant children.

Further before 1970, the word “parent" as mentioned in article 12(4) was translated into Bahasa Malaysia as ibu dan bapa (father and mother). But after 1970, it was translated as ibu atau bapa (father or mother). How has this change come about and who was responsible for it?
What is frequently done is the Muslim spouse unilaterally converts the children of the marriage under a shroud of secrecy without the knowledge of his non-Muslim spouse. The Muslim spouse then refers custody issues to the Syariah court as a means of wresting custody of the children.  It is trite that the Syariah court has no jurisdiction to determine issues relating to non-Muslims.

But notwithstanding the above as in Indira Gandhi’s children’s conversion case, the Islamic Affairs Department converted the children from Hinduism to Islam. This was done in the absence of the mother and the children. This action not only has violated the Federal Constitution but also the rights of the child as Malaysia has ratified the Convention on the rights of the child.

But we seem not to be upholding to the commitments to the Convention as unilateral religious conversion of children can take place in the country.

I took up the unilateral conversion issue in 2009 and the Cabinet did decide to ban unilateral religious conversion of minors. In April 2009, the Cabinet issued a directive to stop parents from secretly converting children to calm strained race relations in the country. Further, laws were supposed to be introduced in Parliament to iron out the short comings.  A Committee was also formed to do the necessary follow up.
However, as the Cabinet directive was merely an advice, it has no bite and nobody respected it. Yet till today, new promised laws have not seen day light for the last 5 years.

So much for the BN’s slogan of Rakyat di dahulukan dan pencapaian di utamkan.

It was reported that a new Committee was formed by the Cabinet this year and it was co chaired by Ministers in the Prime Minister’s Department Datuk Nancy Sukri and Datuk Jamil Khir.

Till today, nothing new has come out of this committee.

I have said before that the committee set up to address interfaith matters is more dead than alive and its continuous paralysis will hurt interfaith relations in our country.  It is imperative that the Prime Minister Datuk Seri Najib must set up an all political party committee to overcome this serious issue”.

We all realize inter faith matters are sensitive and very difficult to handle and settle.

But this is not an excuse for inaction or sweeping the issue under the carpet.  On the contrary, the government must have the political will to address and resolve the issue which is certainly not a storm in a tea cup matter.

The issue requires urgent, permanent and satisfactory solution.

The only law which clearly sets out a situation when a non Muslim converts to Islam and the rights is spelt out in Section 51 Dissolution on ground of conversion to Islam (2) The Court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may attach any conditions to the decree of the dissolution as it thinks fit.

This section 51 should guide all parties when one converts to Islam. But a converted parent still proceeds to a syariah court and gets the necessary orders to convert the child. In Indira Gandhi’s case the Judge said the act of the Syariah court is wrong and he struck down the conversion certificate issued.
May be a tightening of the section could be made in that when one converts the remedy is only via Section 51 and nowhere else.

The sad scenario is that in conversion cases, the child suffers the most. .Like in Indira case, the mother and daughter were separated when the child was only 18 months old and was still breast fed.

This will and can end if the Prime Minister takes the lead by amending the relevant laws to protect all.  He has been dragging his feet on this issue for years.

Enough is enough. The issue requires urgent, permanent and satisfactory solution and the Prime Minister must act quickly.

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