COMMENT The G25 warmly welcomes the announcement by Prime Minister Najib Abdul Razak at the launch of the National Women’s Day celebrations on Aug 25, 2016, that the cabinet has agreed to amendments to the Law Reform (Marriage and Divorce) Act 1976 ( Act 164 ).
According to the prime minister, the proposed amendments are scheduled to be tabled by the Home Ministry at the next sitting of the Dewan Rakyat in October this year.
The prime minister said that Act 164 would be amended based on three core principles.
The first is that any issue relating to divorce where the marriage had been solemnised under civil law, must be settled in the civil court.
This is to ensure that ancillary matters such as child custody rights and child maintenance until higher education are protected and assured.
The second principle is universal justice, whereby the amendments to the Act will give both parties the opportunity to resolve civil marriage issues at the civil court.
The third principle is the resolution of conflicts between the civil court and the Shariah Court where one party converts to Islam.
The amendments aim to overcome legal loopholes and overlap in existing laws.
The G25 is hopeful that the amendments to Act 164 will put to an end the injustices suffered by non-Muslim wives in the numerous cases that have come before the civil court since the Shamala case in 2004, where the husband converts to Islam and, to compound matters, converts the infant children of the marriage without the consent of the wife.
The common factor in all these cases was that the unilateral conversion was done to spite the wife and deny her custody of the children.
The relevant provision of the federal constitution in respect to the religion of a minor is Article 12(4).
This provision states :-
12(4) For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
However, the Federal Court decision in the case of Subashini in 2008, has compounded the problem for the mothers in such cases because it ruled that “parent” means either parent and not both parents.
The Bar Council and many legal experts are of the view that the Federal Court ruling in the above case is wrong.
Article 160 of the Federal Constitution explains the rules of interpretation .
The Eleventh Schedule under section 2 (94) and (95) state that words importing the masculine gender include females and words in the singular include plural and vice versa.
It is also to be noted that until 2002 , the Bahasa Malaysia version of the Federal Constitution, as published by the government printers, translated the word “parent” as “ibu bapa”.
However, in the 2002 edition, the word “parent” was translated as “ibu atau bapa”.
Clearly, for the word “ibu bapa “ to be changed to “ibu atau bapa” would require an amendment to the Federal Constitution.
But from what could be ascertained, there has been no such amendment.
In light of the above, the G25 would urge the government to amend Article 12(4) of the Federal Constitution in order to nullify the Federal Court decision in the Subashini case and make it very clear that the word “parent” in the above Article means both parents and not just a single parent.
In the meantime, we would also urge the government to rectify the mistake made by the government printers in the Bahasa Malaysia version of the federal constitution and restore the translation of “parent” to the original “ibu bapa”.
The G25 sincerely hopes that the government will at the same time address the controversial issue of unilateral conversion of minors by one parent without the consent of the other parent .
At present this is allowed under the existing Federal Territories Islamic Law Enactment and several other state Islamic law Enactments.
However, in April 2009 the cabinet had decided that children of parents where one of them chooses to convert to Islam, must continue to be raised in the common religion at the time of the marriage.
Enforce cabinet decision on conversion
In this regard we urge the federal government and the relevant state governments to translate the above-mentioned cabinet decision into law by amending the Federal Territories Islamic Law Enactment 1993 and the relevant state Islamic law enactments by making it a requirement for both parents to consent to the conversion of their child /children.
This would be in line with the third core principle announced by the prime minister of resolving conflicts between civil and syariah courts where one party to a marriage converts to Islam, and will put into practice the government’s intention to overcome legal loopholes and overlap in existing laws.
Our objection to the idea of unilateral conversion of minors to Islam, is that, besides being unfair to non-Muslims, it entrenches inequalities in Malaysia and does so in the name of Islam.
It implies that a Muslim parent, even if newly converted, has more rights than a non-Muslim parent.
This is contrary to Article 8 of the Federal Constitution which guarantees that all persons are equal before the law and entitled to the equal protection of the law.
This article further provides that there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender, in any law.
We note that in all the cases of unilateral conversion of children following the father’s conversion to Islam, the Islamic authorities had allowed the conversion apparently without inquiring into the background of the husband involved and without giving the wife the opportunity to be heard.
In this respect, we would urge the Islamic authorities to undertake the proper investigations in order to determine the real reason for the person wishing to convert.
This may prevent would-be converts from using conversion to escape his responsibilities to his family under civil law, thus abusing the right to convert and making a mockery of Islam.
We would further urge the Islamic authorities concerned to guide the convert on the path of righteousness and prevent him from denying the rights of his non-Muslim wife and that of their children.
Indeed, good and righteous conduct on the part of husbands and fathers towards their wives and children are enjoined in the Quran.
Finally, the G25 also welcomes the announcement by the prime minister of the setting-up of a task force to study the issue of sex crimes, especially rape, involving children.
This is timely given the reported rise in sexual crimes against children.
We hope that the task force will recommend the setting-up of a register of sex offenders and to make it an offence to be in possession of child pornographic materials.
G25 is a group of retired Malay top senior civil servants.