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CIVIL-SYARIAH CONFLICT


A view on infant conversions to Islam

by Salbiah Ahmad
Aliran Monthly, Vol 24 (2004): Issue 9


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judiciaryfedcourt (11K)
 
start_quote (1K) In all the circumstances and in the wider interests of the nation no infant shall have the automatic right to receive instruction relating to any other religion other than (her) own without the permission of the parent or guardian
end_quote (1K)
Supreme Court, 1990

 
The recent High Court ruling in the Shamala Sathiyaseelan v Dr. Jeyaganesh C. Mogarajah case, brought consternation among civil society groups not seen since Susie Teoh was decided in 1986. The case decided on April 2004 concerns the conversion of two Hindu infants, Saktiswaran and Theiviswaran, aged 4 and 2 years respectively, to Islam

In essence what this decision means is that the civil courts do not have the power to hear any application on conversion to Islam as that is a matter for the state syariah court under the Constitution.

In 1988, the Federal Constitution was amended to include Art. 121 (1A), which says that the civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. Syariah courts are state Islamic courts.

The Constitution provides for a federal-state separation of legal systems between a federal civil law system and a state Islamic law system.

There are three reported cases involving infant conversions to Islam in the civil courts to date. The earliest case was the 1986 case of Teoh Eng Huat v Kadhi of Pasir Mas Kelantan (the Susie Teoh case), which went on appeal to the then Supreme Court in 1990. This case was decided before the Art. 121 (1A) came into being. The next reported case was in 2003 decided in the Sabah High Court in Chang Ah Mee v Jbt. Hal Ehwal Agama Islam. Then we have the Shamala case decided in the Kuala Lumpur High Court.

The Susie Teoh dilemma

Susie Teoh was 17 years and 8 months when she became Muslim. Her father Teoh Eng Huat, a Buddhist, could not locate her and he took the Jabatan Agama in Kelantan to court. He applied for a declaration that, as father and guardian to the infant, he had a right to decide her religion, education and upbringing and that her conversion to Islam was invalid. The case was covered by the Guardianship of Infants Act, 1961, a federal law of general application, Art. 11 (1) (freedom of religion), and Art. 12 (3), (4) (right to education) of the Federal Constitution.

The High Court ruled that the father’s right to decide the religion and upbringing of the infant (under 18) is allowed “subject to the condition that it does not conflict with the principles of the infant’s choice of religion guaranteed to her under the Federal Constitution”. In other words, the infant has a right to choose her own religion if she does it on her own free will. Susie Teoh was not in court to testify if she had voluntarily become Muslim “as her whereabouts were unknown”.

The Supreme Court overruled the decision of the High Court and held that “in all the circumstances and in the wider interests of the nation no infant shall have the automatic right to receive instruction relating to any other religion other than (her) own without the permission of the parent or guardian”. The Supreme Court, however, did not proceed with the declarations sought by Teoh Eng Huat as these were “only of academic interest” as Susie Teoh had reached the age of majority by the time the case was heard in the Supreme Court in 1990.

The aftermath

It might be noted that several states have passed provisions in state Islamic laws by this time providing for the Islamic age of conversion at baligh, the age of adulthood which is stipulated as 15 for boys and the age of the onset of menstruation for girls. Thus, there is a clear difference between the age of conversion under Islamic law and that under civil law (which is 18, the age of majority).

In 1989, the Selangor state lawmakers passed an additional amendment to the Administration of Islamic Law Enactment (a state Islamic law) to provide that if an adult converts to Islam, any infant children become converted at the same moment.

The passage of this law in the state assembly was opposed by lawmakers from the Malaysian Chinese Association (MCA) and the Democratic Action Party (DAP). It, nevertheless, became law after securing the required majority. This provision was eventually ‘repealed’ by its non-inclusion in a future amendment to that state law after a public outcry.

Eventually state Islamic laws on the conversions of infants were synchronized with the position under civil law. An infant below age 18 requires the permission of both parents and guardian in a conversion to Islam. This appears to be a sound reconciliation.

Chang Ah Mee case: landmark decision

In Chang Ah Mee’s case, the father became Muslim without the knowledge of the mother. He converted Junior Staphie Khoo, the child to the marriage, without knowledge and consent of the infant’s mother on July 28, 1998. The mother obtained custody on Nov. 13, 1998 and sought a declaration that the conversion of the infant was void.

To recap, Susie Teoh was not converted to Islam by her parent. She received religious instruction in Islam (not known whether voluntarily or by compulsion) without the knowledge and consent of her father. In Chang Ah Mee, the infant was converted to Islam by the father.

The High Court in Chang Ah Mee disposed of the case by addressing two issues: (1) the jurisdiction of the High Court on the matter and (2) the status of the conversion.

In disposing of the jurisdiction issue, the court said that the case involved an interpretation of a state law and a civil court has such a jurisdiction even if the state law is one concerning the administration of Islamic law.

Although it was not mentioned specifically in the case, the court looked at the whole situation as one primarily involving the guardianship and custody rights of parents over infants. In this scenario, the relevant laws involve the interpretation of four sets of laws:
  1. Art. 12 of the Constitution on right to education;
  2. The Guardianship of Infants Ordinance (Sabah) as amended in 1999 (“AMLE Sabah”);
  3. The Law Reform (Marriage and Divorce) Act, 1976 (“the Law Reform Act’); and
  4. The Administration of Islamic Law Enactment 1992 (Sabah).
Art.12 provides:
Rights in respect of education

(1) Without prejudice to the generality of Art. 8 (equality clause), there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth ...

(3) No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.

(4) For the purposes of cl. (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
Although Art. 12 (3) mentions “parent or guardian” (singular), the court was not persuaded that Art. 12 intents that only one parent may determine the religion of an infant below 18 in Art. (4). This is because the “Constitution does not discriminate against the sexes….the term ‘parent’ in Art. 12 (4) must necessary mean both the father and the mother….To construe otherwise would mean depriving, for example, a mother of her right as a parent to choose the religion of the infant under Art. 12 (4), if the father alone decides on the religion to be followed by the infant”.

The Guardianship of Infants Ordinance as amended gave both parents the same and equal right over the person and property of the infant. “Such a right is illusory unless it means that the husband and the wife must exercise them jointly, that is, it cannot be exercised by the one without the other save when the other has died”.

Section 68 AMLE Sabah provides that “a person who is not Muslim may convert to Islam if he attains the age of baligh according to Islamic law and provided that if a person is below eighteen (18) years of age consent shall be obtained from the parents or his guardian”.

To reiterate, this provision reconciles the position at both civil and Islamic law. A person who has reached the age of adulthood (baligh) under Islamic law (which may be less than 18) requires the consent of both parents or a guardian if that person has not reached 18 years of age.

Section 69 AMLE Sabah spells out the formal requirements for a conversion, which includes the utterance of the affirmation of faith or shahadah made at the person’s free will.

Having noted the positions of parents as guardian, the court said that the mother custodian has a right under section 89 (1) of the Law Reform (Marriage and Divorce) Act 1976 (referred to as “the Law Reform Act”) to “decide all questions relating to the upbringing and education of the child”. The court did not clarify if this right supersedes the right of the other parent.

In my view, this point strengthens the constitutional argument that both parents have a right to determine the religion of the infant and that the person who has custody of the infant should not be side-stepped in all questions relating to the upbringing and education of the infant (especially in the case where guardianship reposes in another person, who is not a parent of the child).

The court also considered the Qur’an (sura al-Baqarah: 256), which propounds that there shall be no compulsion in religion. Further, the infant a two-year old is not of the age of baligh to be able to utter the affirmation of faith. The conversion was therefore against AMLE Sabah as well and was therefore null and void.

I think that this is a landmark decision. This is the first case after the Susie Teoh decision where the High Court had an opportunity to interpret the laws, both Islamic law (as legislated for the state of Sabah) and civil law, including the provision on fundamental liberties in Art. 12, in a case of conversion to Islam.

The Shamala cases

The Chang Ah Mee case was not followed in Shamala. A High Court decision is persuasive to another High Court, as both are courts of coordinate jurisdiction.

There were four Shamala hearings. This article refers to three hearings dated Sept. 11, 2003 (No. 1), April 13, 2004 (No.2) and July 20, 2004 (No.3) below.

In Shamala (No. 2) decided on April 13, 2004, the High Court in Kuala Lumpur held that the civil court has no jurisdiction to hear the mother’s application for a declaration that the conversion of the infants to Islam without her consent was null and void. The judge emphasized this point in Shamala (No. 3), decided on July 20, 2004 (unreported). He appeared to say that the court did not make any ruling on the conversion. There are, however, passages in both cases that appear to indicate that the court did not wish to disturb the change in status of the infants.

Case No. 1: Syariah order not binding on non-Muslim wife

Shamala (No. 1) decided on Sept. 11, 2003, was a hearing for several matters. The mother sought committal proceedings against the father of the infants for a breach of the interim custody order of the High Court of April 17, 2003. The High Court had granted custody to the mother with access to the father. He failed to return the children to her on May 25, 2003. The mother also applied for declarations that she was not bound by any decisions, order or proceedings of the syariah court.

Shamala, the mother to the infants, married her husband under Hindu rites. The marriage was registered under the Law Reform Act. The husband became Muslim on Nov. 19, 2002 and he converted the infant children on Nov. 25, 2002 without the mother’s knowledge and consent. The parties were not divorced. The muallaf (convert) father had, without the knowledge of his wife and the High Court, obtained a custody order in the syariah court on Jan. 30, 2003.

The High Court ruled that the custody order issued by the syariah court “did not change the interim civil court order” and the syariah court order “is not binding on the plaintiff wife who is non-Muslim”. The interim custody order of the High Court and proceedings were binding on the Muslim husband as matters arising out of the Hindu marriage registered under the Law Reform Act. As his Hindu wife did not file for divorce, she remains “his unconverted wife” under this law. The committal proceedings apply to the husband.

Case No. 2: No jurisdiction to decide

In Shamala (No. 2), decided on April 13, 2004, the custodian-mother sought a declaration that the conversion of the infants was void. She relied on Art. 12 (4) of the Constitution, the Guardianship of Infants Act, 1961, which gives equality of parental rights and section 95 (b) of the Administration of Islamic Law (Federal Territories) Act, 1993 (hereinafter referred to as “AMLE FT”).

The Guardianship of Infants Act, 1961 on equality of parental rights is similar to the Guardianship of Infants Ordinance (Sabah) referred to in Chang Ah Mee’s case. AMLE FT and AMLE Sabah differ. AMLE FT uses the words “parent or guardian” and not “both parents or a guardian” as in AMLE Sabah.

The court ruled that only the consent of one parent is required in the conversion to Islam of a person below 18 under AMLE FT. It held that this is also consistent with Art. 12 (4) which provides for the words, “parent or guardian”.

In my view there are certain weaknesses in these reasons. Art. 12 did begin with the words, “Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on grounds only of religion..” Art. 8 is the provision on equality before the law. The court did not appear to read this as an equality provision of the rights of parents.

It ruled that “parent” under Art. 12 (4) means the father. The equality of parental rights provision under the Guardianship of Infants Act, 1961 was held inapplicable to the Muslim father. After holding the 1961 Act as inapplicable, the court applied the Susie Teoh reasoning that the father as guardian had a right to decide the religion of the infant. This is curious as Susie Teoh’s case relied on the 1961 Act rather than Art. 12 (4).

The court also considered the fatwa (legal opinion) of the Mufti of the Federal Territory as persuasive on the facts. The Mufti was of the opinion that the Muslim father is entitled to unilaterally convert the infants to Islam without the consent of the mother. The fatwa did not appear to cite any authoritative fiqh (opinions of jurists based on Qur’an and Sunnah of the Prophet) arguments used by the Mufti. We thus do not know the fiqh references relied upon to support the opinion.

It will be noted that there is nothing in AMLE FT, passed by the legislature, that incorporates the principle enunciated in the Mufti’s fatwa. As a general rule, the codification of fiqh principles in state law or Islamic law in the Federal Territories indicate the legislature’s preferences or selection of fiqh opinions to become positive law.

If we refer to the Selangor state law in 1989 law on ‘automatic conversion of infants’ upon the conversion of a parent to Islam, that law purport to use a hadith (reported sayings of the Prophet) as its basis. That hadith is not a well-established hadith in Islamic jurisprudence. In any case there is a clear and overriding Qur’anic injunction in sura al-Baqarah, verse 256, which states that there is no compulsion in religion.

I did not read in the court’s judgment if these arguments were raised in court.

After these exertions in several pages, the court concluded that it had no power or jurisdiction under Art. 121 (1A) of the Constitution to decide on the conversion of the infants. According to the court, Art. 121 (1A) ousts the civil jurisdiction over the infants who are now Muslims and the temporary certificates of their conversion are conclusive.

In my view, this is a questionable application of the case law on Art. 121 (1A). The cases cited on Art. 121 (1A) to support the proposition of ouster are cases of Muslim converts out of Islam. The decisions thus far concluded that until the state syariah court rules on the conversion out of Islam, the party concerned was still a Muslim. In other words, those cases cited are arguably limited to situations of conversions out of Islam. Shamala’s prayer relates to the conversion into Islam.

In any case, I have my personal doubts if Art. 121 (1A) is meant to be used in this way at all. This article does not include my arguments on this.

Case No. 3: Mixed Signals

Shamala (No. 3) decided on July 20, 2004 (not yet reported) was an application inter alia for custody, care and control of the infants. The court awarded custody to the mother with access to the father. The court held the “right of religious practice of the two infant children shall be exercised equally by both parents” as laid out in the Guardianship of Infants Act 1961 (despite ruling in Shamala (No.2) that the Act cannot apply to the Muslim father then).

It also held that the law applicable to the infants at the time of their conversion is the civil law. This clear statement appears incongruous to the court’s position in Shamala (No. 2), where it refused to make any decision on the conversion on ground that it had no jurisdiction. In Shamala (No. 3) the court even ruled that the infants were still Hindus “at the time of conversion” and the father should have consulted the mother before converting the infants.

Despite this, it cautioned the Hindu mother from influencing the infants’ religious belief “by teaching them her articles of faith or by making them eat pork” as the court “cannot run away from the fact that the two infant children are now muallaf” and that “they have been issued with temporary certificates of Akuan Sementara Pengislaman ”.

These last sentences imply a preponderance on the part of the judge to accept the conversion of the infants to Islam despite his ruling in Shamala (No. 2) that it cannot decide on the change in status for lack of jurisdiction.

The judgment did not cite section 89 (1) of the Law Reform Act, which gives parent-custodian of the civil marriage (which on the facts still subsist) the right to “decide all questions relating to the upbringing and education of the child”, when he cautioned the mother as above.

Even without a meticulous legal critique of the reasons for the decision, one can see the problems in the Shamala reasoning. Both Chang Ah Mee and the Shamala (No. 2 and 3) cases were decided by the High Court. Both cases had to decide on the status of the conversion of infants and custody. In my view, the Chang Ah Mee case was a better reasoned case.

At the moment we have two cases of the High Court. Both are persuasive. Another High Court may decide differently or opt for either the Chang Ah Mee decision or the Shamala (no. 2) decision in a case on infant conversion to Islam.

Acknowledgments: The writer thanks Messrs Zainal Abidin & Co. for the reported cases cited in this article and Messrs Daim & Gamany for the judgment of the High Court in Shamala’s case dated July 20, 2004.


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