Tuesday, March 3, 2015

Sabah student’s conversion to Islam invalid as she’s a minor, lawyer says



Sabah student’s conversion to Islam invalid as she’s a minor, lawyer says

BY JENNIFER GOMEZ

Published: 2 March 2015 7:00 AM 

The conversion of a 16-year-old girl to Islam at her boarding school in Sabah without her Christian parents' knowledge is not valid under the law, as the religion of a minor can only be changed with both parents' consent, constitutional lawyer M.Kula Segaran said.

The law on this matter has been decided in the civil courts, he said, based on the Ipoh High Court ruling in the case of kindergarten teacher M.Indira Gandhi, where the court held that the unilateral conversion of her three children, aged between six and 17, by her Muslim-convert husband Riduan Abdullah was unconstitutional.

Kula  Segaran said the parents of the student in Kinarut, Papar, should be able to seek recourse in the civil court to impugn their daughter's conversion certificate, if one has been issued.

This is because under Sabah's Islamic laws, a person can convert to Islam only after attaining the age of majority according to the religion, but if the person is below 18, the parents' consent is needed.
Kula Segaran was asked about the legal status of the girl's religion, which has been disputed by her parents, who raised her as a Christian and who claim that she had been wrongly influenced at the school into embracing Islam.

It was reported that the the girl had been staying at a school hostel, as her father, rubber tapper Jilius Yapoo, could not afford the cost of the daily commute to school.

He discovered that his daughter had converted to Islam and was wearing the "tudung", or headscarf when he went to visit her after hearing reports that she had become a Muslim.

The teacher allegedly responsible for the conversion has been transferred to another school in Sabah and was not faulted for any wrongdoing after claiming that the student had wanted to embrace Islam voluntarily.

Kula Segaran said the consent of both parents to the changing of a minor's religion was stated in the Federal Constitution, which although read "parent", should be taken to mean the plural and not the singular under the constitution's rules of interpretation. The case of Indira Gandhi and her ex-husband is now pending at the Court of Appeal.

Kula Segaran, who is also the Ipoh Barat MP, said that in the case involving the Sabah schoolgirl, by nature of the fact that she was a non-Muslim and a minor before the alleged conversion took place, the Shariah court had no jurisdiction over her.

"Furthermore, no right-thinking Malaysian would buy the story that the girl went to school and converted willingly.

"The state education department should stop pretending as though this is not an issue, they should haul up and discipline the person who converted her," he said.

He also expressed concern that this case was the tip of the iceberg, whereby they could be many more students being converted, but which were not highlighted because the parents were too poor and did not have the means to bring the cases out into the open or to take legal action.

"Its totally fine if the parents consent to their minor children being converted to Islam, but if they are unaware of the conversion taking place, then, that is a problem," he said.

"The parents in rural areas have no choice but to allow their children to stay in school hostels.
"They send their kids to school to get an education, not to get converted," he added.

Giving a different view was lawyer Nizam Bashir, who practises in both the Shariah and civil courts.
He said the prevailing law on conversion of a minor is provided for under section 68 of the Administration of Islamic Law Enactment (Sabah) 1992, that states that parents consent is needed for the conversion of a minor below the age of 18.

Therefore, at first look, it appears that Yapoo might have recourse to impugn the conversion certificate.

However, Bashir added that the second limb of the section, where consent is required, may be unconstitutional.

This is because Article 11 of the Federal Constitution provides that every person has the right to profess and practice his own religion.

"As such, keeping in mind that the girl is not an infant, in the sense that she is not a child between 4 and 8, the pre-requisite of consent constitutes an unreasonable restriction and infringes her right under Article 11 of the Federal Constitution," Bashir added.

He also said that the other consideration as what constitutes the age of a minor, is seen differently from a civil perspective and Islamic law.

He added that a 16-year-old might be considered a minor from a civil perspective but from an Islamic law perspective, the girl may have "come of age" or reached puberty, as Islam doesn't just look at age but also considers other biological factors to determine age of responsibility.

He added in such instances, the child should be interviewed by the appropriate authorities to determine if she has come of age and also whether she has converted willingly.

Bashir said this would also be consistent with Article 14 of the Convention of the Rights of Child, that a State shall respect a child's right to freedom of conscience and religion.

He said similar sentiments are expressed in Article 10 of the Cairo Declaration on Human Rights in Islam, that conversions through compulsion are prohibited in Islam.

"So, as Malaysia is a signatory to both documents, I think Malaysia's stand on this issue, whether as expressed by the Federal government or by a state government, should be identical irrespective of whether it is being expressed on an international front or the domestic front," Bashir said.

But he added that whether someone is a Muslim or not, should rightly be determined by the Shariah court, adding that civil courts cannot enter into "religious thickets" to determine this question.

"The only exception is the girl's father can fall back on neutral principle of law, where an applicant can rely on well-established principles of civil law to determine the question of his daughter's conversion.

"But for now, I can't think of any neutral principle of law to assist the father specifically, as I consider Article 11 to be superior as compared with Article 12 on this particular issue, where Article 11 guarantees every person of their freedom of conscience but Article 12 merely guarantees the right of a parent to determine the religion of a minor purely for religious instruction purposes," Bashir said.

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