Strong support for Clause 88A

Moderates, lawyers and politicians all for amending Act after landmark Federal Court ruling

PETALING JAYA: The call for the Government to amend the law to prevent unilateral conversion of children has received strong support from moderates, lawyers and politicians.

Universiti Malaya emeritus professor of law Datuk Dr Shad Saleem Faruqi said it would be good to reintroduce Clause 88A to amend the Law Reform (Marriage and Divorce) Act (LRA).

On Nov 21, 2016, Parliament tabled a Bill to amend the LRA with the insertion of Clause 88A, but withdrew it on Aug 7 last year after strong objections.

On Aug 10 last year, Parliament passed the Bill without the clause.

Clause 88A states that the religion of the child “shall remain as the religion of the parties to the marriage prior to the conversion” and that the child can, after turning 18 and with the consent of both parents, convert to Islam.

The Federal Court ruled on Monday to nullify the unilateral conversion of M. Indira Gandhi’s three children by her ex-husband.

Subsequently, Prime Minister Datuk Seri Najib Tun Razak said on Tuesday that the Government may consider amending the law to bring it in line with the ruling.

“It will be good to introduce Clause 88A to incorporate the Federal Court’s ruling, and in the meantime, contradictory federal and state legislation must also be read subject to the ruling,” said Prof Shad, adding that the apex court’s ruling is law.

“To ignore a judicial ruling is contempt of court. Parliament is not supreme. Neither is executive policy.

“The law is what the judges interpret it to be.”

Prof Shad said it was unfair that some people are questioning the decision of the Federal Court on religious grounds.

He said the judges were not deciding on issues of syariah or fiqh (juristic reasoning) but on constitu- tional and administrative law.

“The litmus test of a law’s validity is the Constitution, not the ideals and commands of religion.

“The judges were not ruling on Islamic law but on the narrow issue at hand,” said Prof Shad.

Moderation advocate Mohamed Tawfik Ismail said the court’s decision emphasised the constitutional safeguards every Malaysian enjoys.

“The Government has decided to come to the side of the court’s decision, which should be crystallised into law,” he said.

Syariah and constitutional lawyer Nizam Bashir said he supported the decision to prevent unilateral conversion, but added that any legislation must take into account the best interest of the child.

“This is true for cases where the child has been raised as a Muslim for a long time, yet now has to adapt to a new life and religion,” he said.

Wanita MCA fully supports the proposal to reintroduce Clause 88A as it will ensure consistency in the judicial system.

“This is very timely and it is a wise suggestion in view of the recent landmark Federal Court ruling on unilateral conversion of children,” its chief Datuk Heng Seai Kie said when contacted.

“The reintroduction of 88A will give clarity on the issue of conversion of minors, ensuring consistency in the country’s laws,” she said, adding that the ruling on Monday also upholds the supremacy of the Federal Constitution.

Noting that there are some groups against the reintroduction of Clause 88A, Heng urged all parties to respect one another to ensure the harmony of the country’s multicultural society.

Parit Buntar MP Datuk Dr Mujahid Yusof Rawa said Imam Syafie, whose Sunni school of jurisprudence Malaysia follows, states that an underage child must follow the faith of the Muslim parent.

However, he said there are other opinions on the matter.

He explained that Imam Malik was of the opinion that the faith of underage children in such a situa- tion will follow the father, while Imam Al Thawri felt that the child has the right to choose upon reaching puberty.

“This is not about giving a free hand for a Muslim child to leave Islam, but the matter is open to debate and is not static.

“If we just refer to one opinion which could lead to hatred in the family and deprive the child of love, I don’t think (it) is in accordance with the greater objectives of Islamic teachings,” said Mujahid, the Amanah vice-president.

Bukit Katil MP Shamsul Iskandar Md Akin, who is a Syariah lawyer by profession, said any attempt to amend the law must not be done to gain political mileage.

“No party should politicise the issue merely to woo voters in the coming polls,” he said.

While supporting the move to review Clause 88A, Shamsul Iskandar, who is also PKR vice-president, said any new law must contain caveats that will protect the child’s right to choose his or her religion.