Law reforms when one spouse converts to Islam: some solutions?

loyar-burok-01Islamic law cannot be implemented on those who do not profess Islam. Islamic law and the Syariah Courts must never interfere in any matter in which a non Muslim is involved or which involves non Islamic law matters.

Syariah Courts must only exercise jurisdiction where

    1. ALL parties are persons professing the religion of Islam, and

    2. the matter is a matter of Islamic personal law as expressly legislated by State Assembly, AND

    3. the State Assembly has the power to make such legislation under Item 1 of the State legislative list in the 9th Schedule of the Federal Constitution.

In my view, the Federal Court decisions in Latifah bte Mat Zin v Rosmawati binti Sharibun & Anor [2007] 5 MLJ 101 and Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia, Intervener) & Anor [2008] 3 MLJ 617 have confirmed that the above is the law. Arguments that Syariah Courts somehow have jurisdiction over everything and anything so long as it touches on Islam must now be rejected. We shall see if that actually happens.

Civil Courts must be restored their full judicial power. Civil Court Judges must be especially careful to show that they are deciding these cases without a bias towards the Islamic authorities. The perception now, rightly or wrongly, is that a non Muslim does not get a fair hearing in these situations.

The civil Courts must exercise their supervisory jurisdiction over Syariah Courts which transgress their boundaries. Due respect must be accorded to Article 121(1A) of the Federal Constitution in cases where the Syariah Courts are genuinely vested with jurisdiction and have made a decision. The intention of Article 121(1A), according to Tun Mahathir when moving the Constitutional amendment that gave birth to it, was to prevent Muslim couples who were dissatisfied with Syariah Court orders running to the civil courts to challenge it. It was not meant to immunize the Syariah Court and to allow it to run roughshod over the Constitutional limits on its jurisdiction.

Marriage rights. Either party should be able to petition a civil Court for divorce if one converts to Islam. This is a huge concession by the non Muslim community, given that it is now an easy way for a husband to get a divorce and given the cultural stigma attached to divorced women.

All relief due to a non converting spouse must be determined by civil Courts according to civil law and not Islamic law. There should be no attempt to introduce Islamic law through the back door by making amendments in the civil law, e.g. by creating different provisions or different limitations for women whose husbands convert to Islam. Creating a situation where different rules apply to divorces where a husband converts to Islam will certainly be interpreted as meaning that different principles apply, and it will be a short step to then say Islamic law principles are to be applied. This will then be an incentive to recalcitrant husbands to convert to Islam, and therefore avoid their obligations. It will also not provide a just solution to the families involved.

Children. Both parents must decide religion of children until the child attains 18 and can decide for him or herself. It must be clearly stated that there can be no ‘automatic’ conversion, and it must be clearly provided for that both parents must consent if a child is to be converted to Islam, with explicit recognition that the child can choose his or her own religion in due course.

In many matters relating to the custody and care of children, the discretion is ultimately left to the Court to decide in situations where the parents cannot decide. But in this case, if the Court orders that the child be raised a Muslim or be converted to Islam, under Malaysian law as it now stands the child will never be able to revert to his or her former religion and the other parent will not be able to give the child instruction in their own religion, negating their parental rights.

The position in international human rights law can also be considered. That is that the child decides in accordance with his or her evolving capacity, subject to the right of the parents to give instruction in their own faiths. But this can only work if there are no prohibitions on the child changing his or her religion later in life.

Inheritance rights should not be lost just because of conversion. The Baitulmaal (the fund kept by the Islamic authorities to be distributed for the general welfare of Muslims) or certain Muslim family members alone cannot unjustly enrich themselves. That this is the current position is seen in the case of Majlis Agama Islam Wilayah Persekutuan v Lim Ee Seng & Yg Lain [2000] 2 AMR (20) 2062, HC.

The Distribution Act 1958 should be reformed so that it applies, subject to Muslim family members of the convert taking their share and then distributing it according to Islamic inheritance laws (called faraid).

The convert can make a will disinheriting his non Muslim family. However, this must be subject to the Inheritance (Family Provisions) Act 1971 which must be amended to allow non Muslim dependant family members to apply to Court for monies out of the estate of the deceased convert.

EPF and Insurance nominations and Pension rights must not be lost just because of the conversion

Conversion into and out of Islam should be a painless process, without the requirement of permission or any penal sanction. There should be a simple notification procedure under the National Registration Act for notification of conversions.

No permission from any party should be required either for conversion into Islam or conversion out of Islam. However, a procedure requiring a notification to family members is welcome. Safeguards must be put in place within civil law and through the civil Courts to ensure that all obligations of the convert are fulfilled.

However, conversion either way cannot be an excuse to evade one’s obligations under the previous law governing your personal status. The Federal Court refused to allow the 4 followers of Ayah Pin to escape criminal prosecutions in the Syariah Courts because they had renounced Islam, ruling that at the time they committed the offences there was no dispute that they still professed themselves to be Muslim: Kamariah binti Ali & Lain-lain lwn Kerajaan Negeri Kelantan & Satu Lagi [2005] 1 MLJ 197, FC

Similarly, converts into Islam should also not be allowed to evade their obligations under the law.

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