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MP SPEAKS It comes again. Yes, I am referring to the latest decision by the Court of Appeal in respect of the conversion issue involving the children of M Indira Ghandi and Mohd Ridzuan Abdullah.

The conundrum of their legal fights should act as a wake-up call for the government to take immediate action in providing workable solutions to the issue of conversion of children without parental consent.

The majority opinion of the Court of Appeal held that only the syariah court has exclusive jurisdiction to determine the validity of conversion of children to Islam. Hence, it overturned the High Court's decision which ruled in favour of Indira Ghandi, the mother of the children.

The High Court further held that the conversion was null and void due to the non-compliance of the relevant laws.

To her partial relief, the mother's grievances seemed to be duly appreciated by the dissenting judgment of the Court of Appeal, albeit minority opinion, which affirmed the decision of the High Court.

Justice Hamid Sultan Abu Backer held that the conversion was a nullity from the beginning as the application for conversion was not made by the children - as required under the law. The evidence showed that the application was made by the father of the child, and thus against the law.

Be that as it may, the dissenting judge treated the issue as purely an administrative issue, thus the jurisdiction of the civil court was not ousted.

The decision of the Court of Appeal might be celebrated by many Muslims as if it was a religious victory out of a holy war between good and evil. I really hope that I am wrong to hold such an assumption.

This article is not intended to offer a detailed commentary of the judgment. My immediate reaction upon reading the judgment as reported in media, was that the court - as usual - took the safest route by not taking the bull by the horns in addressing the lingering issue of conversion of children without parental consent. Instead, the court simply held that the proper forum to hear the conversion ought to be the syariah court. Period.

The right attitude for Muslims?

The judgment aside, what I really seek to share here is what should be the right attitude - from the Islamic perspective - of Muslims in facing this delicate issue. In other words, how are we as Muslims, supposed to address the issue of conversion without jettisoning the principle of justice which is the bedrock of Islam.

Truth be told, the jurisdictional clash between civil and syariah courts is not a new phenomenon.

There have been many legal battles in court arising on the issue of conversion which, unfortunately, failed to offer - let alone produce - any meaningful, efficacious and workable solutions to the problems.

On the contrary, every time the issue of conversion erupted in court , I dare to say, the real winner which emerged from these legal tussles was the profound distrust among the different religious adherents in this country.

As pointed out earlier, being Muslims they have to ask themselves ,what should be their right attitude in addressing this issue? To me, it depends on how Muslims define the doctrine of justice in facing the non-Muslims who are genuinely denied their basic rights in any legal battle with Muslims.

It is so unfortunate that some of the Muslims view the delicate issue of conversion only from the theological angle. This attitude would simply reduce the sophistication of the issue into this simplicity - the Muslim father or mother must save his or her children's faith at all costs, thus justifying the denial of the non-Muslim parent to have any say on the custody or conversion of the children. That is how they define justice.

Simply put, justice equates to victory in getting the custody and conversion of the children at all costs.

Any Muslim who holds this view would simply endorse the unilateral action by any Muslim parent to convert the children to Islam, thus ignoring the audi alteram partem (rights to be heard) of the non-Muslim parent. The subscriber to this view also believes that the only forum qualified to hear the conversion case is the syariah court. Period.

To be honest, I do hope we could've reduced this nightmarish issue into such a simplicity; but the problem with this view is that it is based on certain false assumptions.

First, it is assumed that Malaysia is governed by a single legal system, administering all Malaysians regardless of their religious beliefs.

It further puts non-Muslims and Muslims on the same level that they must be subject to the same court, namely syariah courts.

‘Justice to your enemy’

It also assumes that before the divorce, both spouses contracted the marriage under the Islamic law and not under the Law Reform (Marriage and Divorce) Act, thus there is nothing wrong for the syariah court to deal with their marital problems.

The fact that the Court of Appeal decided only the syariah court should have the sole jurisdiction to hear and determine the validity of the conversion, seems to suggest that the court has also subscribed to the said view. The court apparently did not care that the effect of the judgment was as good as closing the doors of justice to the non-Muslim's litigant. In other words, the court seemed to play down the principles of natural justice.

That is why the Muslims, in particular our religious scholars, should not view this issue within the narrow compass of the theological perspective alone. On the contrary, justice to all - which stands as the cardinal principle of Islam - must be duly taken into account.

The Quran categorically reminds Muslims, “Let not the hatred and enmity forbid you from dispensing justice. Do justice as it is more closer to piety (Al-Maidah: 8).” This verse not only promotes justice for all, but it also enjoins Muslims to establish the most difficult part of justice - i.e. justice to your enemy.

That justice is the hallmark of Islam has been the view of our great Muslim scholars such as Ibn Qayyim al-Jauziyyah who had aptly said: "The entire system of syariah is founded on the principles of justice, mercy and wisdom. Be that as it may, anything which is against those three principles are not syariah in spite of its labels."

Translating such principles into the case at hand, do Muslims really see any justice, mercy or wisdom transpired from this legal battle when one litigant is forced to seek justice in the court where she is not allowed to go or participate in the first place?


MOHAMED HANIPA MAIDIN is a lawyer and the MP for Sepang, as well as chairperson of Parti Amanah Negara’s legal bureau (Kanun).

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