Malaysia is presently engaged in a delicate balancing act between secular and Islamic law. It is urgent for the future of our society (which includes many non-Muslims) that this effort proceed carefully and successfully. The recent cabinet decision regarding the religion of children after conversion of the father to Islam disrupts the delicacy of this matter. This decision has opened of floodgates of secular prejudice against Muslim males in general, encouraging comments by public figures such as Marina Mahathir and Karpal Singh, both of whom have since cast serious aspersions upon the behavior of Muslim males in general.
One of the glories of Islamic law and custom is that the privacy of the marriage must be honored even after divorce. Children must not be exposed to the two “halves” of their inner lives squabbling with each other in violence and hatred. Many western converts consider this duty to protect the reputation of an ex-wife as one of their main motivations to convert from the western laws that so often end up in courtroom fighting, whether over child custody or child support payment.
In short, the cabinet has seen fit to issue a directive in an area that directly contradicts Islamic law and in fact nullifies the dignity of the Islamic management of divorce proceedings. The children of polytheists are emphatically NOT allowed to follow the damning “syirik” of the non-Muslim parent, especially if polytheist, upon valid conversion of their father. Such a father cannot possibly be denied the power to redeem his own children as he himself has been redeemed.
Islamic law, which confirms that the status of a religion of the minor child would, upon conversion of any spouse, be Islam, only, allows the issue of guardianship/custody to remain open to discussion. Islamic legal tradition in fact indicates some flexibility in coming to such decisions.
However, neither the cabinet in particular nor the Federal Government in general has any jurisdiction or power to issue directives relating to the issue of religious status of the children.
There may be NO “middle road” in respect of the implementation of some aspects of Islamic Law, just as there appears to be no such compromise possible with the secularists. In fact, the most that the Federal Government could hope to do would be to enter into mediation efforts with divorced spouses, regarding the fate of their children.
Such mediation must be monitored by qualified Islamic jurists (fuqaha) who are wholly familiar with the facts of the case. Islamic law cannot be written or rewritten, interpreted or reinterpreted, by politicians or academics – competency belongs to trained experts in the sources of Islam, in accordance with the mazhab that the state has chosen to follow.
The constitution stipulates that Islam is the religion of the Federation of Malaysia under Article 3. It is the duty of the Federal Government, and likewise the cabinet, to uphold Islamic law for the benefit of the Muslim majority community, as well as the broader Malaysian public. The cabinet action in this matter would appear to be a dereliction of the government’s constitutional duty.
We urge the government to consider needed amendments to the Constitution, Acts of Parliament, and Enactments of the State, to allow non-Muslims to appear before the Syariah Court in such disputes. The need of the times clearly requires such amendment and clarification to issues of modern life, in order to prevent tragic trauma to children of broken homes, as well as to bring modern life in line with Islamic Law applied consistently and with compassion.
The Cabinet should retract this unconstitutional directive immediately, and refrain from issuing what amounts to a fatwa in this or other such cases, and should defer judgment to qualified fuqaha of the relevant mazhab.
The rights of non-Muslim couples are protected through various mechanisms of Islamic law, such as the principle of protecting the personal privacy of the divorced spouse regardless of her religion, and qualified fuqaha of the Syariah Court should be given full jurisdiction to facilitate a just determination of any such disputes.
Azril Mohd Amin is the vice-president of ABIM and a lawyer