Faith di­vides us

Southeast Asia Globe - - News - By Ana Salvá

A new amend­ment tabled by the Malaysian gov­ern­ment could lock chil­dren into a faith

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The se­cret con­ver­sion of chil­dren to Is­lam is split­ting Malaysian fam­i­lies apart as em­bit­tered spouses use the coun­try’s dual le­gal sys­tem to gain an up­per hand in cus­tody bat­tles

Indira Gandhi’s mar­riage started fall­ing apart around the time she gave birth to her third child, Prasana, in 2008. Based in Ipoh, Malaysia, Indira and her hus­band both iden­ti­fied as Hindu, but he be­gan try­ing to con­vince her to con­vert to Is­lam, threat­en­ing a di­vorce if she re­fused.

“He said we will have more ad­van­tages if we con­vert, like money and prop­er­ties,” she ex­plains.

Although Indira, who works as a kinder­garten teacher, isn’t sure of the time­line, what she does know is that her hus­band con­verted to Is­lam, chang­ing his name from Pat­manathan Kr­ish­nan to Muham­mad Rid­uan. He also con­verted their three chil­dren with­out her con­sent and even with­out their pres­ence, us­ing their birth cer­tifi­cates.

Af­ter a heated ar­gu­ment be­tween the cou­ple on 31 March 2009, he ab­ducted Prasana, who was 11 months old at the time. In the eight years since, Indira has only caught a sin­gle glimpse of her youngest daugh­ter.

“I saw her when she was one year old, dur­ing a trial to get cus­tody [of her],” says Indira. “She re­mem­bered me – she even called me mum – but he re­fused to give [her] back to me.”

Indira’s story is one of the most high-pro­file among a string of le­gal cases that have be­come a source of tension in de­bates over the role of Is­lam in Malaysia, where about 60% of the pop­u­la­tion is Mus­lim, most of them eth­nic Malay.

There are also size­able pop­u­la­tions of Malaysians of Chi­nese and In­dian de­scent, as well as mem­bers of in­dige­nous groups, all of whom as­cribe to a range of be­lief sys­tems in­clud­ing Hin­duism, Bud­dhism and Chris­tian­ity.

The 1957 Con­sti­tu­tion in the­ory guar­an­tees re­li­gious free­dom for non-Malays, yet Is­lam is the state re­li­gion. And Mus­lims are sub­ject to a dual le­gal sys­tem that presents a ma­jor co­nun­drum for par­ents such as Indira: while Is­lamic sharia courts han­dle fam­ily law cases in­volv­ing Mus­lims, sec­u­lar courts han­dle those in­volv­ing non-Mus­lims.

Non-Mus­lims, there­fore, face a le­gal dis­ad­van­tage when their case is heard by an Is­lamic court, as they are not al­lowed to ap­pear in any ca­pac­ity, in­clud­ing to ar­gue their own case. Con­se­quently, in cus­tody dis­putes be­tween re­li­giously mixed cou­ples, the Mus­lim par­ent is more likely to be awarded cus­tody – par­tic­u­larly if the chil­dren have been con­verted to Is­lam. And ac­tivists say that, in some cases, spouses are con­vert­ing to Is­lam to gain an up­per hand.

So it is, per­haps, un­sur­pris­ing that Rid­uan won cus­tody of the child in the sharia courts – a de­ci­sion Indira chal­lenged in the main­stream civil courts. She was granted cus­tody of the cou­ple’s three chil­dren in March 2010, but Rid­uan has not re­turned Prasana, nor has he faced any con­se­quences for ab­duct­ing a mi­nor.

M. Ku­lasegaran, a mem­ber of par­lia­ment for Ipoh Barat who is also Indira’s lawyer, says he is aware of a num­ber of sim­i­lar cases, although no of­fi­cial statis­tics are avail­able.

Ac­cord­ing to the lawyer, many spouses – mostly women – are un­able to take le­gal ac­tion be­cause “it is ex­pen­sive” – at times pro­hib­i­tively so. He and Indira are also await­ing the out­come of Indira’s chal­lenge against the va­lid­ity of her chil­dren’s uni­lat­eral con­ver­sion, a case that is now pend­ing in the fed­eral court.

Crit­ics ac­cuse the eth­nic Malay Mus­lim-dom­i­nated gov­ern­ment of do­ing too lit­tle to in­ter­vene and en­sure jus­tice is served when the coun­try’s dual le­gal sys­tems col­lide. The United Malays Na­tional Or­gan­i­sa­tion (UMNO), which leads the rul­ing Barisan Na­sional coali­tion and holds key posts in­clud­ing prime min­is­ter, lost vot­ers in the last elec­tion. And since then, the party’s pop­u­lar­ity has fallen even fur­ther, thanks in large part to a ma­jor cor­rup­tion scan­dal in­volv­ing Prime Min­is­ter Na­jib Razak. Na­jib, a so-called mod­er­ate Mus­lim, is now court­ing Is­lamist po­lit­i­cal par­ties and pan­der­ing to their agen­das in the hopes of in­creas­ing his pop­u­lar­ity among ru­ral Mus­lim Malays.

James Chin, di­rec­tor of the Asia In­sti­tute at the Univer­sity of Tas­ma­nia, con­tends that dis­crim­i­na­tion against re­li­gious mi­nori­ties “has thus grown rife” in re­cent years. For ex­am­ple, while Is­lamic groups are free to con­vert non-Mus­lims to Is­lam in Malaysia, it is against the law for non-Mus­lims to pros­e­ly­tise among Mus­lims.

Although leg­is­la­tion of­fi­cially places the civil and sharia laws on an equal foot­ing, even in the high court the ma­jor­ity of lawyers are Mus­lim. Ac­cord­ing to Chin: “If you rule against the sharia court, you can be ac­cused by the fun­da­men­tal­ists of be­ing a bad Mus­lim.”

The con­sti­tu­tion says that the re­li­gion of a child un­der 18 should be de­cided by the par­ent or guardian, but this has been in­ter­preted in dif­fer­ent ways. For many lawyers, this means the ap­proval of both par­ents is needed, while the Is­lamic courts have ruled that the con­sent of one par­ent is suf­fi­cient.

A num­ber of rights groups – such as the So­ci­ety for the Pro­mo­tion of Hu­man Rights Malaysia and the Malaysian Con­sul­ta­tive Coun­cil of Bud­dhism, Chris­tian­ity, Hin­duism, Sikhism and Tao­ism – have called on the gov­ern­ment to pro­tect the rights of non-Mus­lims in uni­lat­eral con­ver­sion cases and pri­ori­tise the best in­ter­ests of the chil­dren in­volved.

The Joint Ac­tion Group for Gen­der Equal­ity says that, in re­cent years, there have also been nu­mer­ous cases of wives con­vert­ing to Is­lam and then con­vert­ing their chil­dren. In such cases, ac­cord­ing to the group, “the rights of the non-con­vert­ing hus­bands are sim­i­larly vi­o­lated, and there are se­ri­ous im­pli­ca­tions around cus­tody and guardian­ship of chil­dren”.

Among them is Lee Chang Yong, a busi­ness­man who filed for di­vorce from his for­mer wife, Teng Wai Yee, in 2015. Af­ter they were un­able to reach an agree­ment on cus­tody of the chil­dren, divi­sion of as­sets and other mat­ters, the pe­ti­tion and re­lated or­ders were set aside when Teng con­verted to Is­lam on 29 De­cem­ber 2015, chang­ing her name to Aleena Ab­dul­lah.

On 11 May 2016, Aleena did not take the cou­ple’s eightyear-old daugh­ter and three-year-old son to school. In­stead, she took them to re­cite the Kal­imah Sha­hadah

If you rule against the sharia court, you can be ac­cused by the fun­da­men­tal­ists of be­ing a bad Mus­lim”

(af­fir­ma­tion of faith) to con­vert them to Is­lam. Lee is seek­ing High Court or­ders to nul­lify the con­ver­sion cer­tifi­cates of his chil­dren and to pre­vent the chil­dren’s reg­is­tra­tion as Mus­lims.

Naijb’s gov­ern­ment said in 2009 that con­ver­sions by one par­ent should be halted, but this has never been passed into law. In Novem­ber 2016, they had at last tabled an amend­ment to the coun­try’s mar­riage and di­vorce act that in­sti­tutes le­gal safe­guards against uni­lat­eral con­ver­sion of mi­nors.

The amend­ment seeks the agree­ment of both par­ents in a civil mar­riage for the con­ver­sion of mi­nors to Is­lam. In such cases where one of the spouses has con­verted to Is­lam af­ter a civil mar­riage, the amend­ment says the child will re­main in the re­li­gion of the par­ents at the time of mar­riage un­til the child is 18 years old and may choose his or her own re­li­gion.

Ac­cord­ing to Malaysian lawyer Fahri Az­zat, there is not yet any fixed date for the amend­ment to be de­bated by par­lia­ment. He is scep­ti­cal about whether it will go ahead be­cause he says it seems to be “an elec­toral car­rot for the non-Mus­lims to sup­port UMNO for the next elec­tions”.

If passed, the pro­posed amend­ment would be ap­plied retroac­tively for any cases still pend­ing be­fore the courts. “I hope they will amend it,” says Indira. “It will be a great re­lief for many who are suf­fer­ing in a sim­i­lar sit­u­a­tion like me.”

Indira Gandhi (top left) is fight­ing for cus­tody of her youngest daugh­ter, who her hus­band ab­ducted and con­verted to Is­lam; her lawyer, M. Ku­lasegaran (top right), is also an MP for Ipoh Barat

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