Prioritise child’s welfare should be the priority

Dr. Mike Ghouse   March 3, 2018   Comments Off on Prioritise child’s welfare should be the priority

THE issue of unilateral conversion of minors has once again drawn mixed reactions from non-governmental organisations, lawyers and political parties in Malaysia when the Federal Court unanimously decided in the case of M. Indira Ghandi on Jan 29 that both the parents’ consent was required when determining the faith of minors.

In Malaysia, Article 12 (4) of the Federal Constitution provides: “For the purposes of Clause (3), the religion of a person under the age of 18 years is designated by his or her parent or guardian”.

In this case, the Federal Court has decided that the word “parent” must be understood in the plural form, denoting both “parents”, as interpreted in Schedule Eleven of the Federal Constitution and sections 5 and 11 of the Guardianship Act 1961. This decision marked a departure from the previous Federal Court judgment in Subashini (2007) in which it defined “parent” as one of the parents. Moreover, the Federal Court in the recent Indira Ghandi case also rejected the argument put forth by some parties that the court decision in the case of Susie Teoh (1990), who voluntarily converted at age 16, had anything to do with the interpretation of the word “parent” as singular or plural.

It may be useful to refer, in this connection, to some points discussed in two policy papers of the International Institute of Advanced Islamic Studies (IAIS) Malaysia, entitled “Conversion in Malaysia: Issues and Reform Proposals”, led by renowned Muslim scholar, Professor Mohammad Hashim Kamali, in 2012 and a Malay-language version entitled “Penukaran Agama Kanak-Kanak— Isu dan Cadangan” (2016 & 2017), by the present writer and Ahmad Badri Abdullah which updated and enhanced the previous versions.

Muslim jurists have held that when both parents convert to Islam, their underage children automatically become Muslims. Problems arise if one of the parties has converted to Islam and the other remains a non-Muslim, leading to an interesting jurisprudential debate. The jurists have held different opinions. The majority views in the Hanafi, Shafi’i and Hanbali schools on this is largely based on whether the convert was the mother or the father. Things are more straightforward in the Maliki school, which stipulates that the child’s religion follows his father’s, and thus, if the father converts, so will the child. The argument behind this Maliki ruling is that the identity and lineage of descent is through the father. Even so, there seems to be no final and authoritative view on this matter, especially since there are no clear-cut Quran verses addressing it.

Nor have the jurists reached any consensus on whether a child can embrace any religion, including Islam.

Many are of the view that children can embrace Islam, based on the precedents of many close companions of the Prophet Muhammad who converted to Islam during their childhood. Among them were Ali Abi Talib, Zubayr al-Awwam, Abdullah ibn Umar and Asma’ Abu Bakar.

Imam Abu Hanifah and his disciple, Muhammad ibn Hassan al-Syaibani considered that children who have attained mumayyiz (prudence) can legitimately convert to Islam— or, for that matter, to opt for apostasy. However, Abu Yusuf views that the child’s decision is legitimate only when converting to Islam, and invalid in the case of apostasy. Zufar ibn Hudhayl​​, another disciple of Imam Abu Hanifah, views that a child can neither convert to Islam nor leave Islam if he has not reached puberty.

Based on the popular hadith that “Every child is born in fitrah (natural state), his parents are the ones who will determine whether the child is a Jew or Christian until he is able to accept or reject it”, there are several important points. First, it is implied that a child cannot determine his religion. Second, a child’s disposition is clear of sin and cannot be held responsible for his religious status or other religious requirements. Additionally, this hadith also mentions “parents” in the plural.

What is important in all this is that the welfare of the child should come above all else. What is happening now is that there are cases where a father or mother embraces Islam and later converts the child to Islam even before the custody decision was made by the court.

This will undoubtedly lead to further problems. Similarly, an automatic decision to keep the child in his original religion following his non-Muslim parent will also lead to future problems. For instance, when the Muslim parent gains custody and wishes to enrol the child for Islamic religious education — it is better that the determination of a child’s religion takes into account the custodianship of the child. Solving this predicament would require cooperation by all parties, especially parents, guardians and the authority to prioritise the welfare of the child.

This can be done through a mediation process which involves a third party that will facilitate both parents towards reaching a compromise regarding the religious status of their child, for the sake of the children’s welfare.

For that reason, IAIS Malaysia, in its position papers mentioned above, proposed several policy reforms relating to conversions in interfaith marriages. Among the recommendations are:

FIRST , to ensure that the issue of conversion does not come in the way of ensuring the child’s welfare and the ensuing custodial responsibilities by the disputing parents;

SECOND , to establish a special branch of judiciary with mixed jurisdiction where both Syariah and civil law judges can sit and adjudicate cases of conversion and religious identity of the child; and,

THIRD, set up a judicial committee of the Conference of Malay Rulers with a mixed composition of Muslims and non-Muslims. The former can be in the majority and female members shall be included.

The writer is associate professor and deputy chief executive officer of International Institute of Advanced Islamic Studies (IAIS) Malaysia

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