BY TUNKU ‘ABIDIN MUHRIZ
JANUARY 15 — The issue of the conversion of children to Islam by a single parent is again in the fore, following the latest legal decision in the ongoing tussle involving M. Indira Gandhi, her ex-husband Muhammad Riduan Abdullah (K. Patmanathan before conversion to Islam) and their three children.
In April 2009, Patmanathan unilaterally converted the children to Islam (then aged 12, 11 and a baby of 11 months) without their or their mother’s presence by using their birth certificates. In September, the Ipoh Syariah Court granted (now) Muhammad Riduan custody of them.
In March 2010, the Ipoh High Court granted Indira custody of the three children. In July 2013, the court annulled the conversions of the children and ruled unilateral child conversions unconstitutional; and in May 2014, annulled the Ipoh Syariah Court’s 2009 custody order, cited Muhammad Riduan for contempt of the Ipoh High Court’s 2010 custody order, and directed him to return the youngest child to the mother. The elder two children were already with the mother.
When he failed to do so, the Ipoh High Court directed the police to locate and reunite the child with the mother, but the Inspector-General of Police did not act, saying the police were sandwiched between the contradictory decisions from the courts.
More legal action climaxed with the Court of Appeal dismissing the Ipoh High Court’s order to the police in December 2014, but last April, the Federal Court granted leave to Indira to appeal against this dismissal.
On Dec 30 last year, the Court of Appeal ruled against Indira in a 2-1 majority decision that the Syariah Courts have sole jurisdiction to decide the religious status of the children, sparking the current round of debate. Much anguish has been caused in this single case, but the implications for the nation are tremendous.
If a precedent is established that deems these unilateral conversions legal, combined with a perception that doing so will increase the likelihood of winning custody of children, some conversions might not be made with true religious intent, making a mockery of religion.
But there are wider constitutional issues attached too. The relationship between the civil and Syariah courts, how they want to define their own powers compared with how the Federal Constitution defines them, and the effectiveness of court orders on the police.
It is apparent the trajectories within our judicial system since Merdeka have resulted in uncertainties in the dispensation of justice. I have written about our institutions being assaulted for political purposes, but conflicting ideas about the normative powers of the civil and Syariah courts are causing particular strain. We can see this tension in attempts to establish hudud law.
On questions of faith, politicians are cautious because of potential electoral effects, and it has become a familiar routine for component parties to persuade their allocated share of the electorate that they are doing the right thing, demonstrating that the pursuit of justice is secondary to political objectives.
Walking this heightening tightrope is unsustainable. To come to ground level, we will need a national consensus on how to resolve conflicts in our judiciary, whether based on the founding principles of our nation or through the demonstration of popular support.
This important project is probably beyond the aspirations of today’s political leaders, but in the issue of unilateral child conversion must be addressed before further anguish is caused.
A panel of ministers has been announced to find a solution, but has already met with scepticism since a 2009 Cabinet “decision” to prevent unilateral conversion had no effect. And in 2013, the government even proposed a Bill to formalise unilateral conversion in the Federal Territories (which it withdrew after an outcry).
But an elegant solution has already been in effect in Negri Sembilan since last February, when the Yang diPertuan Besar consented to amendments requiring non-Muslims to dissolve their civil marriages before they are allowed to be registered as Muslim converts.
They also have to sign a statutory declaration confirming their Muslim status so the rightful party can claim their body for burial. These changes saw cross-party support as it simultaneously prevent legal tussles, protect the non-converting spouses and children and uphold the sanctity of the religion.
Last September, it looked like the federal government was going to follow suit when Minister in the Prime Minister’s Department Nancy Shukri said the Attorney-General’s Chambers was mulling amendments to resolve the conflict of jurisdiction between the civil courts and the Syariah courts when a spouse converts to Islam. On Jan 13, she said the amendments would be tabled in March. Let’s hope so.
* Tunku ‘Abidin Muhriz is president of IDEAS