KUALA LUMPUR: The ongoing debate over the right of an Islamic convert to unilaterally convert his or her underage children underscores the importance of the public role of religion in a pluralistic society like Malaysia.
The Cabinet of Malaysia recently developed the policy that when one partner converts, any children not considered legal adults should be raised in the religion agreed upon by the parents at the time of marriage.
This decision could help to resolve an area of conflict over competing claims and interests that neither the individuals nor the courts have been able to resolve satisfactorily.
However, what was a bold attempt to resolve a protracted problem has yet again revealed the rifts among Malaysians in matters of religion. While the Cabinet decision was welcomed by non-Muslims, the Bar Council, the interfaith Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) and women’s and human rights groups, segments of the Muslim community, such as advocates of an Islamic state, have opposed the decision.
The latter feels that the issue was already decided by the December 2007 Federal Court decision, which ruled that only one parent’s consent was needed for the conversion of children.
But in effect, this decision did not settle the matter, as it did not address certain legal questions. For example, in cases of divorce, it may be more important to consider what is in the best interest of the child.
If the court give custody to the mother, then it may be more practical if the child is raised in the religion of the mother.
When conflicts arising out of conversion, freedom of religion, moral policing, women’s rights and human rights are viewed only through a religious prism which dictates they must be decided according to Islamic principles, or sharia, it makes the search for solutions even more complicated. Far too often, the argument that laws based on sharia represent “the will and command of God has created fear and silenced discussion and debate.
In Malaysia, this narrow ideological approach is now supported by a new interpretative trend urging the courts to read Article 3(1) of the Federal Constitution, which states that Islam is the religion of the federation, meaning that all laws must conform to Islamic principles.
This approach does not consider other constitutional provisions that limit religious jurisdiction and recognize stipulate that the constitution is the supreme law of the land.
The Cabinet has displayed the political will to find a solution to the endless contestations arising from conversions. Given the public outcry and heart-wrenching distress of both parents and children, what is urgently needed now is clarity in law and interpretation.
Non-Muslims should not be subjected to Islamic jurisdiction and a child’s religion should only be changed with the consent of both parents. All matters pertaining to a civil marriage must be resolved in civil court under civil law, even if one party has converted to Islam.
In the longer term, an investigation should be conducted and a report submitted to parliament, clearly addressing the problems, complexities and competing interests on matters involving religion. The government can then present its solutions for debate on the proper role of religion in public life – including law and policy-making, and the framework and principles that would be used to address any grey areas.
In Malaysia, the public space for debate on matters of religion, such as this one, is expanding. The search for just solutions can only take place if we, as citizens, protect this space and consider the concepts of equality and justice from the perspective of religion, international human rights and the constitution. The use of religious arguments for public law and policy must be grounded in the realities of modern day life in a democratic constitutional state and a world linked by international law.
Zainah Anwar sits on the board of Sisters in Islam (SIS) and is a project director at Musawah, the global movement for equality and justice in the Muslim family. This abridged article is distributed by the Common Ground News Service (CGNews) with permission from the author. The full text can be found at thestar.com.my.
