Clause 88A of the Law Reform (Marriage and Divorce) (Amendment) Bill.

1 February 2018

Strong support for Clause 88A

PETALING JAYA: The call for the Government to amend the law to prevent unilateral conversion of children has received strong support from moderates, lawyers and politicians.

Universiti Malaya emeritus professor of law Datuk Dr Shad Saleem Faruqi said it would be good to reintroduce Clause 88A to amend the Law Reform (Marriage and Divorce) Act (LRA).

On Nov 21, 2016, Parliament tabled a Bill to amend the LRA with the insertion of Clause 88A, but withdrew it on Aug 7 last year after strong objections.

On Aug 10 last year, Parliament passed the Bill without the clause.

Clause 88A states that the religion of the child “shall remain as the religion of the parties to the marriage prior to the conversion” and that the child can, after turning 18 and with the consent of both parents, convert to Islam.

The Federal Court ruled on Monday to nullify the unilateral conversion of M. Indira Gandhi’s three children by her ex-husband.

Subsequently, Prime Minister Datuk Seri Najib Tun Razak said on Tuesday that the Government may consider amending the law to bring it in line with the ruling.

“It will be good to introduce Clause 88A to incorporate the Federal Court’s ruling, and in the meantime, contradictory federal and state legislation must also be read subject to the ruling,” said Prof Shad, adding that the apex court’s ruling is law.

“To ignore a judicial ruling is contempt of court. Parliament is not supreme. Neither is executive policy.

“The law is what the judges interpret it to be.”

Syariah and constitutional lawyer Nizam Bashir said he supported the decision to prevent unilateral conversion, but added that any legislation must take into account the best interest of the child.

“This is true for cases where the child has been raised as a Muslim for a long time, yet now has to adapt to a new life and religion,” he said.

Wanita MCA fully supports the proposal to reintroduce Clause 88A as it will ensure consistency in the judicial system.

“This is very timely and it is a wise suggestion in view of the recent landmark Federal Court ruling on unilateral conversion of children,” its chief Datuk Heng Seai Kie said when contacted.

“The reintroduction of 88A will give clarity on the issue of conversion of minors, ensuring consistency in the country’s laws,” she said, adding that the ruling on Monday also upholds the supremacy of the Federal Constitution.

Parit Buntar MP Datuk Dr Mujahid Yusof Rawa said Imam Syafie, whose Sunni school of jurisprudence Malaysia follows, states that an underage child must follow the faith of the Muslim parent.


Group urges Govt not to rush to introduce clause

PETALING JAYA: The Government must not rush to introduce Clause 88A which prevents unilateral conversion of a child by one parent, said the Malaysian Syariah Lawyers Association.

Its president Musa Awang said the Government must first listen to views from Islamic religious authorities and Muslim NGOs before deciding what to do.

“We respect the ruling of the Federal Court … but we also want to stress that this issue needs a long-term solution which is more comprehensive in order to create harmony,” said Musa.

He said the association objects to the Government’s stand to consider introducing the clause to amend the Law Reform (Marriage and Divorce) Act (LRA).

“An amendment would only raise current tensions and can inflame the anger of Muslims,” he said.

Musa pointed out that before the Federal Court ruling on Monday nullifying the unilateral conversion of M. Indira Gandhi’s three children by her ex-husband, the apex court had in a separate case in 2007 ruled that unilateral conversion of a child by one parent to Islam did not violate the Federal Constitution.

In that earlier case, involving secretary R. Subashini whose son was converted to Islam by her Muslim convert husband, the Federal Court ruled that the word “parent” in Article 12(4) of the Constitution, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, “means a single parent”.

“As such, it is not impossible that rulings by the Federal Court can change in future cases,” said Musa.

Malaysian Muslim Consumers Association secretary-general Datuk Dr Ma’mor Osman said it would be better if the Government collects the views of all related parties before acting on the issue.

“This is so that acceptance of any decision will be based on understanding and any objection will not be because of emotion,” he said.

“We understand the Constitution allows all Malaysians to practise their religion freely, but as Muslims we must adhere to the Quran and Sunnah (the customs and practices of the Muslim community that follow the traditions of Prophet Muhammad).

International Islamic University Malaysia law lecturer Assoc Prof Dr Shamrahayu Abdul Aziz said the issue required a lot of wisdom to resolve because many Muslims are unhappy with a clause that forbids unilateral conversion of minors.

“I believe that the Federal Court ruling must be respected but the Government must be cautious in considering its next move and should discuss with those who are unhappy about Clause 88A.


31 January 2018

Don’t put back Clause 88A, warns PAS

KOTA BARU: PAS has warned the Government not to backtrack on an earlier promise to remove Clause 88A of the Law Reform (Marriage and Divorce) (Amendment) Bill.

PAS Information chief Nasrudin Hassan said the party strongly objected to any fresh attempt to include the “previously removed” clause in the new law following the Federal Court’s recent ruling that nullified the unilateral conversion of M. Indira Gandhi’s three children.

Clause 88A stated that the religion of the child shall remain as the religion of the parties to the marriage prior to the conversion and that the child could convert after turning 18 with the consent of both parents.

Stressing that PAS respected the Federal Court’s ruling, Nasrudin said a comprehensive and long-term solution was needed to ensure harmony between both the Syariah and civil judicial systems.


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