I have kept silent about the recent Federal Court's decision in Deepa v. Izwan. There really was nothing for me to say. But this piece by Datuk Zainul Rijal prompted me to write something, because it skirts around the elephant in the room.
I will write in English because I want this to come out as soon as possible. If I can manage, I will write and expand this in BM, because what I want to say should be said in BM as well.
Disclosure: Zainul Rijal is a Facebook friend. I first knew of him some years ago when I wrote to him personally on another issue (can't remember what) relating to Islam in Malaysia. We don't see eye to eye on the topic. But we have, I believe, mutual respect for each other. So please don't think this is a bash-Zainul-Rijal piece. It is not.
His explanation – at paragraphs three and four of his piece – of section 51 and the position (or rather non-position) of the Muslim convert in family matters in the civil court is accurate. The main point he makes in the article is that the convert has rights too, and that has been overlooked, and the solution would be to establish a tribunal where judges from both the civil and shariah jurisdiction can sit and rule on cases such as Deepa's.
In the past, I would have agreed to and supported such a proposal. It's quite a win-win solution.
But now, I propose a simpler solution.
Conversion to Islam, in Malaysia, has to be done at the appropriate state authority and there will be the requisite registration so that there would be no doubt as to the status of the convert's religion. An extra step that can be done to ensure fairness is this: before a conversion is officially registered, the parents (if the convert is not married), or the spouse and children (if the convert is married), should be required by law to be informed of the proposed conversion and be allowed to make representations or objections, and all pending issues must be sorted out before the (proposed) convert is allowed to convert.
There can even be an out-of-court agreement between all parties if there is any urgency to the conversion taking place (for example if the convert is dying and wishes to die as a Muslim), and this agreement can be formally recognised at the civil and shariah courts later when ancillary issues have to be settled.
My solution merely adds an extra step in the administrative process. It is cheaper and faster than establishing a tribunal. And it forces all parties to deal with reality, i.e. the person wishes to convert, and that is that.
Faith is a powerful thing. It should not produce misery and heartache. Children being separated and growing up away from their parents is not right (not when there is nothing other than religion being used as a reason for the separation).
Fair is fair. Just is just. Let's not muddle the issue. – February 12, 2016.
*Jason Kay is a lawyer practicing in Malacca.
This appeared in The Malaysian Insider — http://www.themalaysianinsider.com/sideviews/article/lets-not-muddle-conversion-issue-in-deepa-case-jason-kay
My thoughts on unilateral conversion of minors, in 2013 — http://jasonkaykl.blogspot.my/2013/07/unilateral-conversion-of-minors-to.html