COMMENT When God commanded Abraham to “Take now your son, your only son, whom you love, Isaac, and go to the land of Moriah; and offer him there as a burnt offering on one of the mountains of which I will tell you” [Genesis 22: 1-2], it was with the greatest pain and sadness that he obliged - all in the name of His love for God.
Such is a noble attribute of Abraham, the Prophet. He obeyed with no scintilla of doubt the command to sacrifice Isaac in the name of piety.
However, He does not expect the self-same reciprocity in return of His sacrifice - nor is He desirous in seeing such manner of death in His name, simply because we are not Him. Everyone is not Him. In fact, no one can afford to be Him. So cannot Izwan Abdullah.
Izwan does not have to evidence his faith by dragging his unsuspecting kids into the nasty legal thickets he himself chose to traverse.
He could have spared himself the public wrath and eternal chastisement for converting his minor kids without the consent of their mother by realising that God never expects his offering of converted kids to truly believe that Izwan is indeed a firm believer.
Izwan does not need to offer his kids to God. Izwan is not Abraham. What has now morphed into a hurtful enmity between Izwan and his former wife S Deepa (left) could actually have been eschewed by the profound reflection on the interests of the children and most ultimately, on the respect for the law.
The most crucial dilemma that needs immediate attention is the jurisdictional conflict between the Syariah and civil courts.
While it is not disputed that by virtue of Article 121 (1A) of the federal constitution where no civil court would have any jurisdiction over individuals professing the religion of Islam, matters concerning whom fall within the ambit the ambit of the Syariah Court, it must be noted that the Syariah court is an inferior court and its powers and jurisdiction are limited by the state enactment.
Lest we forget, Justice Lee Swee Seng in his judgment of the recent case between Muhammad Ridzuan Abdullah and Indira Gandhi held that the High Court had supervisory power over Syariah Courts which had a very parochial scope of exercisable powers and jurisdiction.
The crunch came when the unilateral conversion of the children took place. Without the knowledge of the mother, Izwan had, on his own accord converted his daughter and son into Islam, the religion he was never converted into, but instead chose to convert into. The plot thickens when he took away his son, aged six, from Deepa’s house on the pretext that his action was justified by virtue of the custody order granted to him by the Syariah Court.
Despite the Federal Court decision in Subashini a/p Rajasingam and Saravana (2008) holding that Article 12 (4) of the federal constitution must not be read as entrenching the right of choice of religion in both parents, one must not forget that federal constitution which serves as a determinant of destiny in our nation that upholds the appreciation of equal rights, devoid of any desire to favour interested individuals, does not discriminate against anyone and since the children are a product of the equal union between a husband and a wife, and it is with this spirit of equality that the word ‘Parent’ in the Clause 4 of the Article 3 must mean to include both parents of the children in question.
One might, however heave a sigh of slight relief upon noting a much liberal view that is incorporated into the debate wherein Justice Abdul Aziz Mohamad in Subashini’s case stated that although he agreed on the singularity of the word ‘Parent’ in Article 12 (4) of the federal constitution, he held that such view does not mean that the other parent is proscribed from claiming his or her right to object or to prevent the child from being taught about religion or generally, being converted into Islam.
The constitutional crevasse will otherwise crack much wider if only one parent is allowed to determine the religion of the children while the other is deprived of the same opportunity.
Live and let live
It is such an act of most abominable nature when religion is used to quicken one’s pursuit of desire. In the case of Izwan when his six-year-old son was converted into Islam, it is doubted that he son was fully aware of the essence of the Affirmation of Faith that he had declared.
In the case of Majlis Ugama Islam Pulau Pinang dan Seberang Perai and Shaik Zolkaffly bin Shaik Natar and Ors. (2002), the Court of Appeal held that a civil court continued to have the jurisdiction to declare the conversion as being at variance with the law, even if the administration of Islamic law was within the power of the State law.
In that case, the Court declared that a conversion of a minor null and void since the infant had not attained the age of baligh. It can be seen that in the fractious dispute between spouses, religion is often used as an ingenious contrivance to gain custody of the children by the converting partner. By converting a minor into Islam without ensuring his complete understanding of the said oath, conversion cannot be said to be have been effected.
It is submitted that the act of conversion is nothing short of an abuse of the process of court in that the converting partner will be allowed to have his claim for custody heard in the Syariah Court in the absence of the non-converting partner by virtue of the Syariah Court jurisdiction that excludes any matters arising from non-Muslims.
While the law recognizes the right of the ‘Parent’, though arguable it may be, to decide on the religion to be embraced by the children, one must not forget that it does not just take a mere utterance of the affirmation of faith to make one a Muslim through and through.
If it is indeed the honest wish of the converting partner to embrace the religion of his choice, why are the wish and choice of the children not considered at all when deciding on whom the children are most faithful in submitting themselves to?
Izwan may have found his sempiternal love for his God of choice. Let him be. He does not need any prophetic offering to impress God further as Abraham did.
Izwan is not Abraham and never will he be.
AZLAN ABDUL RAZAK is a fervent advocate for women’s rights who is currently an Advocate and Solicitor of the High Court of Malaya.