Over the years, a number of cases decided in court like Susie Teoh (1990), Chang Ah Mee (2003), Shamala (2004) and Subashini (2008) have caused a lot of confusion to the masses. The latest case involving Indira Gandhi and Pathmanathan has made Malaysians more anxious.
Again, when a party to a non-Muslim marriage converts to Islam, the same old legal complications arise: the status of the marriage; maintenance for the children and former wife; custody, upbringing and education of the children; and the determination of the child’s religion especially those under the age of 18, i.e. minors.
The consequences of the whole issue have struck a nerve; the aforementioned case is prolonging the polemic, affecting the harmonious inter-ethnic relations of the nation. Despite efforts to contain the resulting misrepresentation, distrust, hatred and prejudice, some have obstinately defied reasonable counsel.
Let us discuss the religious conversion of minors following the conversion of one of their parents. A ‘minor’ may refer to both an ‘infant’ or ‘child’. Under Malaysian civil laws, the Guardianship of Infants Act 1961 stipulates that an “infant” refers a person who has not attained his majority. The Child Act 2001 defines a “child” as a person under the age of 18. And the Age of Majority Act 1971 clearly states that the age of majority for all males and females is 18.
Therefore in civil matters, one is only considered accountable and responsible for all one’s decisions and actions if one is above the age of 18.
What is the position of Islamic Law? Though Muslim jurists differ, majority of them agree that the legal age of maturity is 15. However, this may vary from one place to another, depending on the peculiarities, circumstances, customs and so on of the community concerned.
When it comes to the choice of religion, Article 12 (4) of the Federal Constitution prescribes that “the religion of a person under the age of eighteen years shall be decided by his parent or guardian”.
In this regard, Islamic law as enforced in Malaysia, e.g. the Administration of Islamic Law (Federal Territories) Act 1993 (AILA), provides that a non-Muslim may convert into Islam if he is of sound mind and has attained the age of 18 years; or if he has not attained that age, his parent or guardian consents to his conversion.
It is apparent that under both Islamic and civil laws, the legal age requirement before one can assume any accountability and responsibility is 18. Anyone below this age, legally speaking, is considered a minor. He/she is considered to lack comprehension and understanding. Thus, he/she cannot be made liable or cannot enter into any contract on his/her own.
Religious adherence is a kind of contract. It requires a certain amount of understanding before one can make the decision to embrace any particular religion. An adult of sound mind can make a choice as he/she can comprehend the implications of his actions, and may be held accountable.
But, can a minor make such an important decision? Can a minor really ‘convert’ to Islam? Can one convert a child to Islam? In either case, is it valid and religiously effective?
What does it take for a valid conversion into Islam? Section 85 of AILA prescribes three conditions: one must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith; at the time of uttering them, the person must be aware that they mean “I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad s.a.w. is the Messenger of Allah; and the utterance must be made of the person’s own free will.
Meaning, if one is incapable of fulfilling any of these conditions, the conversion is not valid and carries no legal effect. A child, let alone infants who are incapable of speech, do not have such capacities to meet the conditions.
Either a minor embraces or ‘converts’ himself or someone else imposes his/her will, all of which do not make the person a Muslim since none of the conditions are met.
‘Islam’ means willing submission to God. It has to be done with certain knowledge and sincerity out of one’s own free will. If one submits unwillingly, i.e. without sufficient understanding or if done grudgingly, or is forced, then one is not a Muslim. A mere utterance of the two clauses of faith does not necessarily make one a Muslim.
Even for the so called ‘born’ Muslims, they must not take for granted that they are Muslims in the true sense of the word if they do not understand what it means to be Muslim. Proper Muslims should understand the requirements, implications and obligations they are supposed to observe.
One of the primary reasons why the quagmire surrounding religious conversion persists is the deficiencies in and restrictions imposed by our own legal systems. First and foremost, why should our Constitution, federal and state laws categorically limit the jurisdiction of the Syariah court to Muslims exclusively?
Under certain circumstances, leave must be given to the non-Muslims for the sake of justice and to seek remedy concerning certain legal disputes from the Syariah court. It is this impression of total ban on the non-Muslims that somehow contributes to their misgivings about Islamic law and its judicial system.
Equally destructive is the discrimination found in our civil law against Muslims. The illustration in point is section 51 of the Law Reform (Marriage and Divorce) Act 1976 (LRA). It provides that if one party to a marriage has converted to Islam, only the party who has not converted has the right to petition for divorce.
If the husband converts, he cannot dissolve his marriage in civil court because he is now a Muslim. Only the wife who did not convert may do so. If the husband manages to get any order from the Syariah court, it has no legal effect on the non-Muslim wife. This situation is obviously unjust to both.
Coming back to the conversion of minors, I believe that the actual problem here is the custody of children and other related matters like their upbringing and education, and not the conversion per se.
When a marriage fails, both sides will understandably show great concern with regard to the religious determination or status of their children. However, attention must be given to the welfare and interests of the children involved. In this respect, both Islamic and non-Islamic laws are unanimous.
If the court adjudicating the dispute deems that the best interests of the child are better or best safeguarded by the mother, custody should be handed over to her regardless of her religion. The same applies to the father. In so doing, the judge(s) presiding the case must carefully study the entire scenario and apply his legal and judicial discretion with utmost wisdom.
Amicable compromise will facilitate and enable the parents, though separated, to care for the upbringing and education of their children. When they reach the age of majority, and when the children feel the time is right, only then they can decide what to do. One must bear in mind that whoever gets the custody of the child, it is not a guarantee that he/she will remain in the religion of that particular parent.