The federal government’s proposed law to stop children from being unilaterally converted to Islam contradicts a fatwa or religious edict, the Shariah Lawyers Association of Malaysia (PGSM) said today.
PGSM president Musa Awang backed Perak mufti Tan Sri Harussani Zakaria’s call for the government to postpone parliamentary debates on the Bill to amend Law Reform (Marriage and Divorce) Act 1976 or Act 164, arguing that it runs counter to a 2009 fatwa.
“The government’s action in amending Act 164 also appears to contradict the decision by the committee of the 87th National Fatwa Council, 2009, which clearly decided that ‘When one of the parents embrace Islam, the religious status for the couple’s children who are minors is automatically Islam,” he said in a lengthy Malay-language statement today.
Musa said the proposed amendment — which requires both parents to consent before their child can be converted to Islam — appeared to “insult” or “disrespect” a fatwa that has been made.
A fatwa is a religious decree or ruling by Islamic religious leaders, but has the force of law in Malaysia.
Musa also claimed that the proposed law amendment is unconstitutional as it allegedly breaches the Federal Constitution’s Article 12(4), which among other things covers the right of the “parent or guardian” to determine a child’s religion for the purposes of education and for participation in religious ceremonies and worship.
He cited the Federal Court’s decision in the case of Subashini Rajasingam v Saravanan Thangathoray, which he said meant that either the father or mother or guardian can determine the religion of a child aged below 18.
The debate on the definition of “parent” — and whether it should include the plural meaning and ultimately means both parents’ consent is required for a child’s conversion to Islam — is still ongoing.
This issue was raised in Hindu mother Indira Gandhi’s court challenge against her Muslim convert ex-husband’s unilateral conversion of her three children to Islam without their knowledge and is currently awaiting a decision from the Federal Court.
“State enactments on the administration of Islam also states a child’s conversion to Islam has to be registered and if any one of the parents agree to the conversion, not both parents,” Musa also asserted, later adding that all state laws should be standardised.
As religion is a matter for the state, all states in Malaysia have their own set of laws on the administration of Islam, with some requiring both parents’ consent and some requiring only one parent’s consent for a child’s conversion to Islam.
Other lawyers had last December told Malay Mail Online that all state Islamic laws that currently allow children to be unilaterally converted to Islam should be amended to match the proposed federal law barring such acts.
Musa today claimed the federal government’s proposed law change to make it mandatory for both parents to consent would only cause Muslims to further regress from the automatic conversion to Islam, alleging that various conditions would then be imposed for conversion.
He said the religion of a child aged below 18 should be distinguished from the matter of child custody rights, asserting that Islamic laws allow non-Muslim mothers to have custody of their child.
“In relation to that, PGSM supports the calls for the government to retract Bill 164 and maintain the existing provisions so it would not cause confusion and the anger of Muslims,” he said, adding that the consent should first be obtained from the Conference of Rulers for such legal changes.
Putrajaya is expected to table the Law Reform (Marriage and Divorce) (Amendment) Bill 2016 for second reading in Parliament this meeting, the highlight being the inclusion of a new Section 88A that explicitly states that “both parties” in a civil marriage must agree for the conversion of a minor into Islam.
Specifically addressing the “Religion of a Child” in civil marriages where one spouse has converted to Islam, the amendment also said that the child will remain in the religion of the parents at the time of marriage until the child is 18 years old, when he may choose his own religion.
Source : @ Malay Mail Online