REPORT ON PROPOSALS FOR FAMILY LAW REFORM TROUBLING
The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism is very concerned about the comments by Senior Federal Counsel Mohamad Naser Disa, as reported in the Sun newspaper of 25.11.2009, relating to proposed amendments to the Law Reform (Marriage and Divorce) Act 1976 dealing with the situation where one spouse in a non Muslim marriage converts to Islam.
If the comments accurately reflect the proposed amendments, it shows that the gross injustices currently being committed against non Muslim spouses (mostly wives) by their husbands who convert to Islam, by the Syariah Courts and Syariah authorities, and by the civil courts will continue.
The comments also show clearly the skewered method of approaching these amendments taken by the Federal Government and theAttorney General’s Chambers: the people who are suffering are the non Muslim family members of the convert, especially mothers who are unable to see their children or to expose their children to their own faith. Yet, from the reported comments of the Senior Federal Counsel, the Federal Government seems to mainly be concerned that a man who converts to Islam is being “cruelly treated” because he cannot break his previous marriage contract and get a divorce.
Conversion cannot be used to evade one’s previous obligations
Whilst a person’s right to profess a religion of his choice is inviolate, no one should be permitted to use the fact of his conversion to evade his obligations to his family. The State, however, cannot use this excuse to restrict the fundamental liberty of a person to profess and practise any religion. Importantly, Islam and Islamic law cannot be imposed on a non Muslim who is guaranteed the right to profess and practice his or her own faith in peace and harmony under our Federal Constitution.
The MCCBCHST is gravely concerned that the proposals will indirectly result in Islamic law being forced on non Muslim spouses, especially wives. One example is the reported proposal to limit maintenance payments to his former wife by the husband who is now Muslim to only 3 months. This is the position in Islamic law. But, the non Muslim wife contracted her marriage under the Law Reform (Marriage and Divorce) Act 1976 which provides that a husband must pay maintenance to his former wife until she remarries or dies.
Why is it that the Muslim convert is allowed to avoid his obligations under his previous contract of marriage merely because of his conversion? We are very concerned that rogue husbands will abuse the system, and convert to Islam as an easy excuse to get out of his marital obligations.
Children and the cabinet decision
There must be a clear statement, both in the relevant Syariah legislation and in other legislation, providing that
- A child under the age of 18 cannot be converted to Islam without the permission of both parents
- In any event, that child should have the right to choose his or her own religion upon reaching the age of majority
This was promised by the Cabinet in its decision on 22nd April 2009 based on reports in the newspapers at that time. Sadly, the current proposals do not reflect that promise.
Syariah interference with non Muslims must stop
Another glaring omission in the briefing by the Senior Federal Counsel is the lack of any proposal for the inclusion of a clear prohibition on the Syariah courts and Syariah authorities from making orders, decisions and taking any action whatsoever in respect of children born to parents who were originally non Muslim.
We strongly object to any attempts to make laws applicable to persons professing other faiths “Syariah compliant”. In our respectful view, Syariah law should only apply to persons professing Islam, and should not jeapardize or affect in any way the rights, privileges and liabilites of persons who do not profess Islam.
The MCCBCHST has previously come up with comprehensive proposals for law reforms, which we have submitted to the Attorney General’s Chambers. We have previously published the general principles which should guide those proposals in our Note of Protest dated June 2007 entitled “Unity Threatened by Continuing Infringements of Religious Freedom”. We have constantly reiterated in our meetings with the authorities and other stakeholders that the predominant principles governing any proposal for law reform must be as follows:-
A. Parliament in respect of the Federal Territories and State Legislative Assemblies should pass state laws limiting the jurisdiction of the Syariah Courts and
- prohibiting Syariah Courts from interfering in matters involving the rights of persons professing faiths other than Islam and
- giving persons who do not profess Islam an explicit right to seek redress in the civil High Courts if Syariah courts interfere in a non Muslim’s rights.
B. Any marriage that is solemnised under the civil law and all matters pertaining to it (e.g. marriage, inheritance, custody, religious status of minors, etc) should be under the jurisdiction of the civil courts, and should be subject to the civil law.
C. The civil courts must be the final arbiter as long as one party involved in a legal entanglement is not a person professing the religion of Islam.
D. A child cannot be converted to Islam except if both parents agree. Even then, that child must have the right to choose his or her own religion when reaching the age of majority.
E. Any person who has reached the age of majority has the absolute right to choose the religion of his choice. The law must ensure that any such conversion to another religion does not prejudice that person’s family. Any law on conversion must permit reversion to one’s original faith with equal facility.
With respect, the MCCBCHST proposals in the main will be fair to both the spouse converting to Islam and the spouse who does not. We have not made outlandish proposals nor have we asked for more than what non Muslim spouses should be entitled to under a law that is fair and just. We therefore urge the Federal Government, and all State governments, to immediately implement the MCCBCHST proposals in the respective laws.
As always, the MCCBHST is ready and willing to assist the relevant authorities in reaching a just solution to this problem.
Rev. Dr Thomas Philips,
November 30 2009
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