Stay Islam Administration Bill, much to amend
The government has just tabled the Administration of the Religion of Islam (Federal Territories) Bill 2013 (the Bill). It is interesting to note that the government did not table a bill to only amend or add in new sections to the existing Administration of Islamic Law (Federal Territories) Act 1993 (the Act).
This Bill, when passed, will totally replace the Act. This means that all clauses of the Bill should and must be looked at to see if it is fair to all sections of Malaysian society: not just among Muslims, between Muslims and non-Muslims, but also between parents and their children.
There are many worrying clauses in the Bill, but I will only address Clause 107 (b) which provides that one parent or guardian of a non-Muslim child may convert her.
Do not be thrown off by people who say that Clause 107 (b) was already there as Section 95 of the Act - so what's the fuss now? The answer is this: we must fuss now because the Bill is tabled with all clauses up for debate so any clause may be amended or withdrawn.
In 1993 when the Act was passed, we were not vigilant. Maybe we thought it was a matter for Muslims, and it will not affect people of other faiths. We know better now after the cases of Shamala, Indira Gandhi and Subashini. Those women and their husbands were Hindus when they were married, and they married under civil law.
Suddenly, their husbands chose to convert to Islam and converted their children without their knowledge or consent. State laws with similar provisions to Clause 107 (b) enabled them to do so.
It is important to note that under the Guardianship of Infants Act which applies to non-Muslims, both parents are equal guardians of their children and have equal parental rights.
However, under Syariah laws in Malaysia, fathers are the guardians of minor children - not the mothers. By converting to Islam and converting their minor children to Islam, S Shamala, Indira Gandhi and R Subashini's husbands effectively took away those women's guardianship of their children.
Many also think that provisions in state laws similar to Clause 107 (b) of the Bill have been confirmed by the Federal Court decision in the Subashini case.
Legal opinions differ on this. What is clear is this: in Subashini's case, the Federal Court was not asked to decide whether conversion by one parent of his minor child to the religion of Islam was constitutional.
The relevant questions posed to the Federal Court in Subashini's case were these:
Question 1: "Whether in an application for an interim injunction a court can make a final determination on issues of law, in particular, where it refers to a question of jurisdiction, as opposed to a consideration of only the existence of a serious issue of law to be determined?" and
Question 2: "If the answer to question number 1 is in the affirmative, then:
"[...] Question 2.4: Is it an abuse of process for a spouse of the Law Reform to unilaterally convert the religion of a minor child of the Law Reform Marriage without the consent of the other parent?"
So whatever the Federal Court said in Subashini's case about one parent being able to convert a child is said in passing ( obiter dictum ) as it did not relate to the questions posed to it. All that is said in passing was do not bind other judges, and they do not have to follow it.
The net result of Subashini's case is that it is not good authority to say that Syariah law provisions such as Clause 107 (b) of the Bill are constitutional.
Leaving aside all the issues of law, and looking at it from a social justice viewpoint, is this the sort of law we want in Malaysia?
The sort of law that allows a parent to ride roughshod over the wishes of the other parent, and without even waiting for their child to attain the age of majority of 18 years to make up her own mind?
The government repeatedly says that national unity is key to our progress and development. In April 2009, the executive arm of the government (i.e., the cabinet) announced that children should be allowed to remain in the common religion of their parents at the time their parents married.
So once again, we can see that the government did not "kotakan kata": they have failed to keep to their word.
Let us lobby our members of Parliament - they form the legislative arm of government. Let us write, email, text, Facebook and Twitter them.
Tell them that they cannot vote for the Bill without amendments being made, and wider consultation with stakeholders from all over Malaysia.
To all our MPs - BN and Pakatan Rakyat alike, I urge you to be brave!
Do not vote to pass the Bill as it stands. You must do the right thing, especially when the executive has failed us.