Confusion as minister’s remark on unilateral conversions sparks fresh debate

(Malay Mail Online) – One year after Putrajaya shelved a controversial Bill permitting the unilateral conversions of minors to Islam, a federal minister’s surprising position on the same issue has again sent lawmakers and legal experts into a tizzy.

Already, the fates of the children in two families hang in the balance as their mothers struggle frantically to tie up the loose ends in their long drawn-out custody battles with their Muslim convert husbands.

But Datuk Seri Jamil Khir Baharom’s claim yesterday that the Federal Constitution permits unilateral conversions has plunged both families into an even more complicated legal wrangle.

For kindergarten teacher Indira Gandhi, the minister’s remark runs contrary to the High Court ruling last July 25, which declared the conversion certificates of her three children — Prasana Diksa, six; Tevi Darsiny, 17; and Karan Dinish, 16 – unconstitutional and against natural justice. Her former husband had converted all three children to Islam without her knowledge in 2009.

In the case of S. Deepa, Putrajaya’s newly-pronounced stand on the conversion of minors only complicates her stated intention to challenge the conversions of her children to Islam, which her husband had done without her consent last April.

Jamil Khir’s comments also contravenes the 2009 Cabinet ruling against unilateral child conversions that had been made specifically to prevent complicated custody tussles involving non-Muslims and Muslim converts.

Then de facto law minister Datuk Seri Mohamed Nazri Aziz had said that an estranged couple’s children should remain in the religion of the parents at the time of their marriage.

Adding to the legal mess is the country’s overlapping civil and Shariah court systems, the former of which applies to non-Muslims and the latter of which neither recognises nor applies to this group.

It was this very confusion, and the fierce opposition from lawmakers and non-Muslim groups that had led to Putrajaya’s decision to shelve the Administration of the Religion of Islam (Federal Territories) Bill 2013 on July 8 last year, a few short weeks before Indira’s ruling in the High Court.

The Bill was the government’s bid to legislate the conversion of minors to Islam, a sticky subject that has wreaked much confusion in custodial battles like Indira’s and Deepa’s, particularly as it has provided a high-profile glimpse of the concerns of Malaysia’s religious minorities over the perceived dominance of Islam in the country.

At the time, it was also Jamil Khir, the man in charge of Islamic affairs in the Cabinet, who had said that the Bill will resurface again once it is streamlined, with all the concerns of stakeholders taken into concern.

There has been little mention of the matter since then until the minister’s remarks yesterday.

But Bar Council president Christopher Leong insisted that the minister and the government would be wrong to reopen the doors to unilateral child conversions to Islam in the country.

The lawyer insisted on the same argument used by detractors of the Bill last year — that the Federal Constitution requires both parents to determine the religion of their offspring before they turn 18 years of age.

Speaking to The Malay Mail Online on the matter yesterday, Leong pointed out that Article 12(4) of the Federal Constitution, which states that the religion of a person below 18 years of age shall be decided by “his parent or guardian”, must be read with Article 160 that refers to the Eleventh Schedule, which states that “words in the singular include the plural” and “words importing the masculine gender include females”.

“The unilateral conversion of minor children to any religion by a parent, without the knowledge or consent of the non-converting parent, is in breach of the Federal Constitution,” he said.

“Therefore, Article 12(4), read with Article 160, must be construed as requiring the religion of children, whether male or female, under the age of eighteen years to be decided by both parents, in cases where both parents are alive,” added the chief of the professional legal body.

In his remarks to Parliament yesterday, Jamil Khir had insisted that Article 12(4) of the Federal Constitution should be read in the singular.

The minister also cited S. Shamala’s case to justify his position on the matter, claiming that the Federal Court had ruled that it was not necessary to get both parents’ approval to convert their child to the country’s predominant faith.

Leong, however, said the minister was mistaken.

“On the contrary, the Federal Court had declined to address and make a decision on the issue of whether the unilateral conversion to Islam of the children in question was lawful and constitutional.

“The case was dismissed by the Federal Court purely on the basis that S. Shamala had absconded out of the jurisdiction with the children and was therefore in contempt of court,” the senior lawyer said.

In Shamala’s case, the Hindu woman had fled the country with her two sons in 2004 and is believed to be residing in Australia.

Commenting on the matter yesterday, Ipoh Barat MP M. Kulasegaran said Jamil Khir’s remarks went against the Cabinet’s decision in 2009 to ban the unilateral conversions of minors.

“Has the government made a U-turn on the April 2009 decision banning the unilateral conversions of minors?

“If so, when did the Cabinet make such a U-turn?” asked the DAP leader, who is also the lawyer in Indira’s case.