In the midst of the on-going discussion on the question of the conversion of a child to Islam, it is important to pay serious attention to an objective and balanced Policy Paper on the issue produced by the International Institute of Advanced Islamic Studies (IAIS) based here in Kuala Lumpur in December 2012. The Paper entitled “Conversion in Malaysia: Issues and Reform Proposals” was researched and prepared by a group led by IAIS Chairman and CEO, Professor Mohammad Hashim Kamali, widely recognised as one of the world’s most outstanding Islamic jurists.
A response to a Bill presented to the Dewan Rakyat in April 2009 which was subsequently withdrawn, the Paper notes that “there is difference of opinion over the religion of the child when only one of the parents embraces Islam.” The majority position represented by various schools of Islamic jurisprudence and jurists is that “the child follows the religion of the parent who has converted to Islam, be it the father or mother.”
However, in line with the Islamic public law doctrine of siyasah shari’yyah, which authorises the government to “issue ordinances, and enact rules and procedures, including legislation and policy measures, that serve the cause of justice and good governance,” with the higher goals and purposes of Shari’ah in mind, the maqasid al-shari’ah, the Paper argues that it may be necessary to review the “ hitherto prevailing pattern of legislation that Malaysia has applied to conversion cases” which “ has evidently fallen short of finding satisfactory solutions to conversion-related cases…”
The primary concern of State and legislation, the Paper points out, “should be the welfare of the child…” This means that the custody of the child should take precedence over “the determination of the child’s religion.” The religion of the child “would depend on which parent is the guardian or has custody of the child.” In both Islamic law and civil law, the Paper emphasises, “the interest or welfare of the child is paramount in determining the custodial rights over a child.”
The Paper then lays out various options on how the question of the custody of the child could be resolved. The first option is to amend section 51 of the Law Reform (Marriage and Divorce) Act 1976 and make the “civil court the court of jurisdiction in conversion cases.” A shar’iah court can also play this role since a “non-Muslim challenging a conversion could appear in a Shariah Court to set aside any order.” A second option is to set up a special bench of mixed jurisdiction “where both Shari’ah and civil law judges sit and adjudicate in disputed issues of conversion and religious identity of the child.” A third option is to establish a Judicial Committee under the Conference of Rulers.
Whatever the chosen mechanism, the Paper makes it explicitly clear that “upholding justice should be the concern of the protectors of Islam in this country. The religion is built upon a set of principles. Surely the larger and more significant battle would be to defend Islam’s integrity as opposed to manoeuvring a purported “victory” by insisting that minors automatically become Muslim when either parent converts to Islam. Is this firstly in the child’s best interest? Secondly, are we not concerned that we may hurt the sensitivities of non-Muslims in multi-racial Malaysia and betray what Islam stands for as a result? Would the Ummah benefit from this in the long run?
Dr. Chandra Muzaffar,
Board of Trustees,
(Members of the public interested in the Policy Paper referred to in the above letter can write to www.iais.org.my)