The withdrawal of the Administration of Islamic Law (Federal Territories) Amendment Bill 2013 is a moral victory, says human rights lawyer Malik Imtiaz Sarwar, but he says there are other similar state enactments as well. 

“I am glad that it (the Bill) became controversial, but in truth, I don’t understand why it did because other states already have this provision: one or the other; ibu atau bapa (father or mother)... 

“What they tried to do recently for the Federal Territories was to make it consistent with what the court said in the Subashini (Rajasingam vs Saravanan Thangathoray) case as well as other states,” he told a forum this morning. 

The Bill withdrawn yesterday contained a controversial provision, Clause 107B, stating that the consent of only one parent is sufficient to convert his child to Islam.

The amendment’s proponents often cite the case of Subashini to show that the amendment is in line with the federal constitution, though others, including Malik Imtiaz, opined that this was obiter dictum, meaning it is not legally binding.

Regardless, he added during the question and answer session that this is a moral victory to be exploited because the political climate is now ripe to address religious issues that legislators have previously shied away from.
‘BN parties are a little more open’

“It seems to me that the BN component parties are a little bit more open to discussing this in a way that they weren’t before. 

“Looking at positions taken by Gerakan and so on, it points to a scenario where a discussion may be more possible,” he clarified to reporters after the forum.

He added that the government, especially the Attorney-General’s Chambers, should look into ensuring that all laws are consistent with the federal constitution’s provisions for equality and that singular words in the constitution such as ‘parent’ shall also denote the plural, in coordination with state governments. 

In addition, he said the Federal Court could revisit the Subashini case can clarify the meaning of the word ‘parent’ under Article 12(4) of the federal constitution that deals with the religion of a minor. 

Although the case wa dismissed on technical grounds, the judge had opined that the word was singular, hence the consent of one parent to convert is sufficient. 

The Bar Council had pointed out that this is inconsistent with the 11th Schedule, Section 2(95) of the federal constitution, which states that “words in the singular include the plural, and words in the plural include the singular” when interpreting the constitution.

Malik Imtiaz said during custody battles, one parent sometimes unilaterally convert himself or herself and the child into Islam and bring the issue to the Syariah Court, where the magistrate would not be in favour of a Muslim child being in the custody of a non-Muslim. 

Since the Syariah Court has no jurisdiction over non-Muslims, this would also leave the non-Muslim parent “out in the cold” while the court deals with the case solely from an Islamic perspective. 

“That is why I think it is very dangerous thing to allow for a situation where one parent can decide the faith of the child, leading into this kind of complexities,” he said. 

Another panellist at the forum, syarie lawyer Nizam Bashir Abdul Kariem, concurred, pointing out that Subashini had fled abroad with her children after failing to seek justice here for her case.

'Folk must have freedom in matters of faith'

Meanwhile another speaker, Islamic Renaissance Front chairperson Dr Ahmad Farouk Musa told reporters that it should not matter how a child is raised, quoting a verse in the Quran that “there shall be no compulsion in religion”. 

“People must have freedom in matters of faith; they will make their own decisions when they grow up,” he said. 

The cardiothoracic surgeon also questioned whether there were “ulterior motives” in introducing the Bill right after the elections. 

“Of course we welcome the decision, we still don’t know what will happen in the future. Politics-wise, we are unsure, we are still waiting for the outcome of the whole issue. 

“In the first place, why was this done?” he said. 

Commenting on DAP chairperson Karpal Singh’s suggestion that the constitution should be amended to clarify that both parent’s consent are needed, Malik Imtiaz said he is unsure if this is necessary because the position of the constitution is already clear. What needs amending are the state enactments. 

While conceding that it is a possible solution, he said, “What Karpal suggested - I don’t know, I’m just guessing - may have been prompted by trying to get a quick solution than taking the process through the courts again and revisit the decision,” he said. 
 
~ Malaysiakini