Federal Court: Islam requires convert to consult spouse before changing child’s faith

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https://hakam.org.my/wp/2018/01/31/federal-court-islam-requires-convert-to-consult-spouse-before-changing-childs-faith/
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Source: Malay Mail Online

KUALA LUMPUR, Jan 31 — Islamic principles oblige Muslim converts to seek their non-Muslim spouses’ opinion before altering the religion of children born to a civil marriage, the Federal Court has indicated.

In the full judgement for its landmark ruling on Monday, the Federal Court highlighted two tenets in Islam — namely Al Syura, or consultation, and Al Adl, or justice — that are prescribed to Muslims.

“There was no consultation if the reverting parent has absolute right to change the original religion of the children without consulting the non-reverting parent,” Federal Court judge Tan Sri Zainun Ali said in a 100-page judgement sighted by Malay Mail.

The Federal Court on Monday nullified Muslim convert Muhammad Riduan Abdullah’s unilateral conversion of his three children to Islam in 2009. He had converted the trio who were still minors without their knowledge and without Hindu mother M. Indira Gandhi’s consent or knowledge.

Zainun added that a Muslim convert parent should demonstrate good faith in their desire for their children to embrace Islam and allow non-Muslim family members to be drawn to Islam without coercion.

“Due process of justice will only be upheld if both parents are given the right to be heard by a single competent authority.

“The reverting parent should demonstrate true Islamic character and sincere niyyat for conversion, hence children or the non-converting spouse will be attracted to the Deen without duress or coercion,” she said, using the Arabic terms for intention and religion.

Some Muslims use the phrase “reverting to Islam” to describe those embracing the religion, as they believe all humans are Muslims at birth.

Zainun’s comments were raised when examining whether the requirements under Perak state law must be complied with before the Registrar of Muallafs (Muslim converts) can register the conversion of children to Islam.

She concluded that the registrar had no jurisdiction to issue certificates of conversion for Indira’s three children as the legal requirements were not met, noting that the children had not recited the affirmation of faith required for conversion and were not even present before the registrar then.

Shariah courts’ limitations

Earlier in her judgement, Zainun highlighted that the Shariah courts’ jurisdiction is limited only to people and matters listed in the Federal Constitution’s State List and matters expressly provided for under state laws.

Shariah courts also cannot exercise the civil courts’ inherent powers such as judicial review or the review of actions and decisions by public authorities, she said.

Under item 1 of the Federal Constitution’s Ninth Schedule’s List II, which determines what matters fall under the states’ jurisdiction, Shariah courts are stated as having jurisdiction only over those professing Islam as their faith. Matters listed here include Islamic law that mainly revolve around personal and family law for Muslims.

“Where the subject matter is within the purview of the Shariah Court but the party appearing before it is not, the matter cannot be brought before the Shariah Court.

“It is trite that the Shariah Court has no jurisdiction over non-Muslim parties and non-Muslim parties have no locus before the Shariah Court,” she said.

Zainun also concluded in her judgement that the civil courts have exclusive jurisdiction to hear Indira’s challenge of the legality and constitutionality of the her children’s conversion and registration as Muslim converts.

The judge noted that Indira, as a non-Muslim, has no legal standing to appear before the Shariah courts for her case, while the Shariah courts would also “not have the power to expand its own jurisdiction to choose to hear” Indira’s case.

Zainun’s judgement was unanimously backed by the other judges on the Federal Court’s five-man panel that included Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, and Federal Court judges Tan Sri Abu Samah Nordin and Tan Sri Ramly Ali.

The Federal Court’s judgement reverses an earlier December 2015 majority decision by the Court of Appeal in Indira’s case involving her three children’s conversion.

In the 2015 majority decision, the Court of Appeal had dismissed Indira’s challenge and had implied that the fact that the non-Muslim Indira would have no remedy in the Shariah courts would not by itself give the civil courts jurisdiction.