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New Sunday Times
by Roger Tan
THE cabinet of Prime Minister Datuk Seri Najib Razak should be commended for
having the gumption to tackle the longstanding, highly emotive issue of the
effect of one partner's conversion to Islam after a civil marriage.
On Thursday, Minister in the Prime Minister's Department
Datuk Seri Mohamed Nazri Abdul Aziz made a surprise announcement that the
cabinet had decided that a child's religion must be in accordance with the
common religion at the time of marriage between the parents in the event that
one of them opts to convert.
This decision to maintain the status quo as regards the child's religion is also
in accordance with the well-established principle that the interest of the child
of marriage is of paramount importance.
Nazri also stressed that conversion must not be used as a ground to
automatically dissolve a marriage or to get custody of children.
He added that the cabinet also decided that a marriage solemnised under civil
law could only be dissolved in the civil court.
This is indeed a landmark decision which reflects the voice
of moderation and reason, something which could best be described initially as
almost unbelievable.
It is reassuring to know that after so many years, it now takes a new prime
minister to make it look as if resolution to this problem can be rather simple
if only our leaders have the political will to do it.
By making this decision, our leaders have set a fine example to their countrymen
of the importance of exercising mutual tolerance in our multi-religious country.
It also lends credence to Najib's 1Malaysia concept.
The government's decision is, in fact, in line with the 1994 decision of the
Supreme Court in Tan Sung Mooi (F) v Too Miew Kim, where judge Mohamed
Dzaiddin, in delivering the decision of the court which also comprised Lord
President Abdul Hamid Omar, Chief Justice Gunn Chit Tuan, judge Edgar Joseph Jr
and judge Mohd Eusoff Chin, said trenchantly:
"Under s.51 (Law Reform (Marriage and Divorce) Act 1976), where one party to a
marriage has converted to Islam, the other party who has not so converted may
petition for divorce and 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 and may attach any condition to the decree of
dissolution.
"The legislature, by enacting s.51, clearly envisaged a situation that where one
party to a non-Muslim marriage converted to Islam, the other party who has not
converted may petition to the High Court for divorce and seek ancillary
reliefs...
"Further, it would seem to us that Parliament, in enacting sub-section 51(2),
must have had in mind to give protection to non-Muslim spouses and children of
the marriage against a Muslim convert...
"It would result in grave injustice to non-Muslim spouses and children whose
only remedy would be in the civil courts if the High Court no longer has
jurisdiction, since the syariah courts do not have jurisdiction over
non-Muslims."
While the above dictum was later adopted by the Federal Court in the celebrated
case of Subashini Rajasingam v Saravanan Thangathoray 2007, judges Datuk
Nik Hashim Nik Ab Rahman and Datuk Azmel Maamor, who formed the majority, also
ruled, rather confusingly, that the converted husband could still seek divorce
in the syariah court albeit the rulings made by the syariah court would not bind
the civil court.
The Federal Court went further to rule that any parent had a right to convert
the child of marriage to Islam.
It held that the word "parent" in article 12(4) of the Federal Constitution
which states that the religion of a person under the age of 18 shall be decided
by his parent or guardian, means a single parent.
Further, reliance could not be placed on s.5 of the Guardianship of Infants Act
1961 which gives the mother equal parental rights over the child as the 1961 Act
does not apply to Muslims, including the converted father.
It follows that unless a new Federal Court panel departs from the Subashini
Rajasingam decision in a future case, intervention from Parliament will be
necessary to give effect to the latest decision of the cabinet that any change
in the child's religion must require the consent of both parents in addition to
removing any overlapping jurisdictions of the civil and syariah courts.
It is hoped that the government will amend the relevant federal laws as well as
to cause the state governments to make changes to their state Islamic
enactments.
I pray, too, that the sultans, being the heads of Islam in the states, will give
their royal assent to the legislative amendments as non-Muslims are also their
subjects who look up to their royal highnesses to protect their interests.
I believe that this latest move by the Najib administration is good for the
country because history has proven over and over again that moderation and
fairness are vital in achieving national cohesion in a multi-racial and
multi-religious society.
Hence, it is rather unacceptable for Parti Keadilan Rakyat member of parliament
Zulkifli Noordin to move, though unsuccessfully, in the March parliamentary
sitting to amend the Federal Constitution to state that any law which is
inconsistent with the Constitution shall be deemed void, except for Islamic
legislation; thereby making Islamic law the supreme law of the land.
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