Hornbill Unleashed

August 14, 2017

Once again, BN ignores legitimate non-Muslim rights

Filed under: Politics — Hornbill Unleashed @ 8:02 AM

The withdrawal by BN of the important Section 88A clause which guards against unilateral religious conversion of a child by one parent in the Law Reform (Marriage and Divorce) Act (Amendment) Bill, ignores legitimate non-Muslim rights and favours a hardline stance more in consonance with PAS’ Islam.

It is symptomatic of an increasingly blatant shift of BN towards a more extreme positioning in favour of perceived Malay-Muslim “rights”, even when the secular Federal Constitution confers no such rights on Malays or Muslims.

It means that Umno, which basically makes strategy in BN and largely ignores other BN constituents as the latest event clearly shows, is shifting more towards appealing to Malay votes, even at the expense of alienating non-Muslims.

That’s a desperate as well as a dangerous approach when nearly two-fifths of the population is non-Muslim and Malays form about half of the population – you do need substantial non-Malay support as well. In the 2008 general election, mainly Hindu Indians, traditionally BN supporters but formed a mere 7 percent of the population, solidly voted opposition (by some estimates over 80 percent) and helped swing many seats.

While the two highlighted cases who will be affected by the Section 88A withdrawal involve Hindu Indians, the Buddhists, Christians and others will be affected too and will take unkindly to what amounts to a flagrant violation of non-Muslim rights.

Across the South China Sea in Sabah and Sarawak, bumiputera Muslims who practice a much more liberal brand of Islam, where members of the same family can come from different religions, are not necessarily going to side with the more extreme and strict interpretations of Islam practised in the peninsula.

Section 88A reads: “(1) 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.

“(2) Where the parties to the marriage professed different religions prior to the conversion of one spouse to Islam, a child of the marriage shall be at liberty to remain in the religion of either one of the prior religions of the parties before the conversion to Islam.”

The decision to withdraw Section 88A was announced by Minister in the Prime Minister’s Department Azalina Othman Said on Monday. It follows upon the decision of the National Registration Department to appeal a unanimous Court of Appeal decision which ruled that a child conceived out of wedlock can take on his or her father’s surname and that the edict against this by the National Fatwa Committee does not have the force of law.

The deputy prime minister, reflecting the increasingly hard stance of government in favour of Islamic laws and fatwas even when they contradicted the law of the land, said that Muslims must stand together in opposing anyone challenging decisions by the National Fatwa Committee.

“In this case, Muslims must unite and agree that Islam must be respected and that we do not want any decisions made by the National Fatwa Committee to be challenged by anyone, whether an individual or a different legal system outside of the fatwa committee,” Zahid said.

“The amendments needed to be made so that (the bill) would not be in conflict with provisions under the Federal Constitution,” Azalina said in the statement.

Azalina also said that the fresh amendments would also be in line with court decisions on the interpretation of Article 12 (4) of the Federal Constitution, which states that the religion of a person below 18 shall be decided by a parent or a guardian.

Presumably, this would have sorted out supposed ambiguities in the Constitution and in particular Article 12.4 (3) “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 4 (4) “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.”

Empty promise

Essentially, Section 88A would have removed the unfairness of a situation when spouses married under civil laws divorce or separate. With the court’s narrow interpretation of Article 12(4) spouses could convert the children to Islam and then claim jurisdiction under syariah law for the determination of custody of the children, which is expected to go in favour of the Muslim spouse.

Many legal sources, however, consider it unnecessary to have a constitutional amendment for Section 88A to go through, with many interpreting the singular parent or guardian to apply in the plural as well, with many precedences to show for that line of argument.

Section 88A came in the wake of the controversial cases of M Indira Gandhi and S Deepa, whose Muslim convert ex-husbands had unilaterally converted their children to Islam and abducted the children.

Reports said Prime Minister Najib Abdul Razak assured the public last year the cabinet would find ways to resolve interfaith child custody conflicts between Muslim and non-Muslim parents but the promise goes unfulfilled.

Meantime, neither the MCA nor the MIC top guns have come up with strong statements to denounce the withdrawal, which is bound to anger many of their supporters and could even lead to further erosion of support for the two parties in the forthcoming GE14.

MIC chief Dr S Subramaniam in a weak defence of the situation said: “The current attempt to reintroduce the amendment without Section 88A, is to allow the public to get the benefit of the other amendments while we continue relentlessly to address the issues of unilateral conversion.”

MCA’s president Liow Tiong Lai echoed the same sentiment. He said that the attorney-general was of the view that the proposed Section 88A, which touched on children’s religion where one spouse had converted to Islam, contradicted with provisions in the Federal Constitution.

“The clause can be revisited later, but let’s debate and pass the rest of the bill.”

Both are rather lame excuses which is a clear indication, if any more is needed, that MCA and MIC don’t matter in the BN coalition and all that they have done over the years is to sit and watch as Umno through BN progressively eroded non-Malay, non-Muslim and human rights through numerous changes in the law, including the Federal Constitution.

It’s more than high time for many parties in the BN coalition to review their role there and to see if they can achieve their aims and those of its members outside BN. In addition to MCA and MIC, that would also apply to the parties from Sabah and Sarawak where religious tolerance is much more widely and deeply practised than in the peninsula.

The withdrawal of Section 88A may unleash yet another torrent of anger and dissent against BN already besieged by severe lack of public support in the aftermath of numerous scandals and abuses such as 1MDB, SRC, FGV, Mara, NFC, PKFZ, GST, MACC, AG, IGP, DPM, CJ, EC, ECRL, HSR, Sosma, Poca… just to name some.


Source : Malaysiakini by P Gunasegaram
P GUNASEGARAM does not think that the current government will revisit Section 88A.


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