'Stop ding-dong battle over child conversion'

The judgement, which had quashed the certificates of conversion of the three children who had been converted to Islam by their father in 2009, was hailed a "landmark decision".

However, two legal academicians said that it was too early to call this judgement a landmark decision as the case has yet to reach the country’s supreme courts, both the Courts of Appeal and the Federal Court.

Constitutional expert Professor Emeritus Datuk Shad Saleem Faruqi said that to call it a ‘landmark’ would be akin to “predicting a heavy weight fight after the first round.”

“It’s too early to say decisively. It is (still) a ding dong battle, and this is just one round and I expect this very sad saga, which is most painful for children caught in the middle, to continue,” said Shad.

The law professor said that the only way this issue can come to a conclusion was if a political decision is made by the country’s top leadership.

“This is an issue where the courts are divided. It is reluctant to take a stand. A political decision has to be made. The executive must step in and make a stand,” he said.

He proposed that legislation has to be debated in Parliament and therefore put an end to the “endless ding dong battle” once and for all.

Shad, who is of the opinion that Article 12(4) of the Federal Constitution which provides that "the religion shall be decided by his parent or guardian” denotes the plural, maintained that a Federal Court precedent on this matter was flawed.

In 2007, the Federal Court ruled that R. Subashini’s husband – who had embraced Islam – had the right to convert their children to his faith without her consent.

“These conversions are not conversion necessarily out of faith. In many cases, it was done to basically teach the wife the lesson. It is the easy way out and basically Islamic law us being abused to circumvent the procedures. That is not good for either the cause of justice or reputation of Islam,” commented Shad.

Differing from Shad’s interpretation, law lecturer from Universiti Islam Antarabangsa (UIA) Assoc Proffesor Dr Shamrahayu Abdul Aziz said that the Federal Court judgement was the prevailing legal standing at the moment.

“The previous Federal Court decision still stands, I don’t know how far the High Court in this case has considered that court’s decision, we have to look at the full written judgement,” said Shamrahayu.

She said that this was not a landmark case if the facts between this case and the Subashini case was similar, and added that it would likely still be appealed to higher courts.

“So far, the newspaper reports on the decision is confusing,” she said.

On whether the thought one parent should be able to convert a child, Shamrahayu said that the constitution is clear on the matter.

“Because the provision uses the term parent, not parents. Logically speaking that is the mother or father. If you want to ask parents who are divorcing can they both decide on the religion of the child? It may not be possible.”

Shamrahayu said that the argument that the interpretation for singular terms in the Constitution also include the plural has already been deliberated by the annexe courts and cannot be used anymore.

Earlier this month, the government has decided to withdraw the Administration of the Religion of Islam (Federal Territories) Bill 2013, which was introduced in Dewan Rakyat on June 26.

Section 107(b) of the Bill talks about conversion by a single parent, to be withdrawn and groups had argued that islamisation of children should have the consent of both parents.