The Association of Women Lawyers is responsible for the promotion of the rights, welfare and professional development of women lawyers and law graduates in Malaysia. It is an organisation to eliminate discrimination and ensure full and equal participation of women lawyers and law graduates in the legal and related fields.
THE government has just tabled the Administration of the Religion of Islam
(Federal Territories) Bill 2013 (the Bill). It is interesting to note that the
government did not table a bill to only amend or add in new sections to the
existing Administration of Islamic Law (Federal Territories) Act 1993 (the
This Bill, when passed, will totally replace the Act. This means that all
clauses of the Bill should and must be looked at to see if it is fair to all
sections of Malaysian society: not just among Muslims, between Muslims and
non-Muslims, but also between parents and their children.
There are many worrying clauses in the Bill, but I will only address Clause
107 (b) which provides that one parent or guardian of a non-Muslim child may
Do not be thrown off by people who say that Clause 107 (b) was already
there as Section 95 of the Act – so what's the fuss now? The answer is this: we
must fuss now because the Bill is tabled with all clauses up for debate so any
clause may be amended or withdrawn.
In 1993 when the Act was passed, we were not vigilant. Maybe we thought it
was a matter for Muslims, and it will not affect people of other faiths.
We know better now after the cases of Shamala, Indira Gandhi and Subashini.
Those women and their husbands were Hindus when they were married, and they
married under civil law. Suddenly, their husbands chose to convert to Islam and
converted their children without their knowledge or consent. State laws with
similar provisions to Clause 107 (b) enabled them to do so.
It is important to note that under the Guardianship of Infants Act which
applies to non-Muslims, both parents are equal guardians of their children and
have equal parental rights.
However, under Syariah laws in Malaysia, fathers are the guardians of minor
children – not the mothers. By converting to Islam and converting their minor
children to Islam, Shamala, Indira Gandhi and Subashini's husbands effectively
took away those women's guardianship of their children.
Many also think that provisions in State laws similar to Clause 107 (b) of
the Bill have been confirmed by the Federal Court decision in the Subashini
Legal opinions differ on this. What is clear is this: in Subashini's case,
the Federal Court was not asked to decide whether conversion by one parent of
his minor child to the religion of Islam was constitutional.
The relevant questions posed to the Federal Court in Subashini's case were
Question 1: "Whether in an application for an interim
injunction a court can make a final determination on issues of law, in
particular, where it refers to a question of jurisdiction, as opposed to a
consideration of only the existence of a serious issue of law to be determined?"
Question 2: "If the answer to question number 1 is in the
"[…] Question 2.4: Is it an abuse of process for a spouse of the Law Reform
to unilaterally convert the religion of a minor child of the Law Reform Marriage
without the consent of the other parent?"
So whatever the Federal Court said in Subashini's case about one parent
being able to convert a child is said in passing (obiter dictum) as it did not
relate to the questions posed to it. All that is said in passing do not bind
other judges, and they do not have to follow it.
The net result of Subashini's case is that it is not good authority to say
that Syariah law provisions such as Clause 107 (b) of the Bill are
Leaving aside all the issues of law, and looking at it from a social
justice viewpoint, is this the sort of law we want in Malaysia? The sort of law
that allows a parent to ride roughshod over the wishes of the other parent, and
without even waiting for their child to attain the age of majority of 18 years
to make up her own mind.
The government repeatedly says that national unity is key to our progress
and development. In April 2009, the Executive arm of the government (i.e., the
Cabinet) announced that children should be allowed to remain in the common
religion of their parents at the time of their parents married.
But we can see that the government has failed to keep to their word.
Let us lobby our members of Parliament – they form the Legislative arm of
government. Let us write, email, text, Facebook and Twitter them. Tell them that
they cannot vote for the Bill without amendments being made, and wider
consultation with stakeholders from all over Malaysia.
To all our MPs – Barisan Nasional and Pakatan Rakyat alike, I urge you to
be brave! Do not vote to pass the Bill as it stands. You must do the right