SHAMALA, Subashini, Nyonya Tahir, Lina Joy, Moorthy, Revathi. These are names recognisable to Malaysians.
The issues which emerge upon the conversion of a family member are multi-fold and have great implications on our most fundamental human rights. They are the subject of reform proposals today. We cannot afford to be left out of this debate. Some of these issues are discussed below.
As a starting point, it is clear that we all have the right to choose our own religion. Freedom of religion is recognised in international human rights conventions and the Federal Constitution. It is the personal choice of a person and founded on a person’s faith and conviction.
The question being debated now in Malaysia, however, is should such right be unfettered? Is placing a requirement either on the convert or the authorities to inform family members of a person’s conversion to Islam a fetter on such right? Is the inability of a Muslim to convert to another religion a fetter on such right? Is compelling such a person to undergo rehabilitation for months a fetter on such right?
Following from that, how does one balance this personal right to freedom of religion with the rights of the (non-converting) family members, particularly in light of “secret” conversions, attempts at renunciation of the responsibility to pay maintenance to dependants, inability of the non-converting family members (including aged parents and children) to inherit from a Muslim convert’s estate, and proposals to limit a non-converting former wife’s right to maintenance to only three months (no matter how long the marriage).
The object of law is to provide justice. And the object of justice is not to protect only the strong and the powerful but also the weak and the marginalised. In fact, the measure of society is its ability to do right by and for the weak and the marginalised.
Even if some consider it fair to apply Islamic law principles on a non-Muslim spouse (which is arguable), extracting bits and pieces of Muslim laws and applying them in a piecemeal fashion to situations cannot resolve the social and moral issues surrounding conversions.
For example, although a divorced Muslim spouse is entitled to only three months maintenance, under Muslim laws she is also entitled to muta’ah (compensation) which is calculated on the length of the marriage and her contributions to the family. Muta’ah can be ordered to be paid in instalments, thus fulfi lling the function of maintenance. Applying the Muslim provision on maintenance (three months) without the accompanying muta’ah provision results in unfairness and injustice.
A spouse who contracts under civil laws cannot be expected to know the Muslim administration of laws. Neither can he or she be expected to subject himself or herself to unfamiliar concepts administered in the name of a religion he or she does not subscribe to.
Aged parents who spend a lifetime bringing up their children would surely object to the denial of inheritance rights to their deceased child’s estate or being told that they can only inherit one third of such estate (if at all), with two thirds (or all in the absence of a will) going to the Baitulmal or the religious authorities.
Aged spouses should not fear their life investments disappearing or be expected to appeal to religious authorities to waive the latter’s entitlement to the convert’s estate so that the widow/widower can inherit the property which the convert and his/her partner acquired and invested during their lives.
In Malaysia, where religion is not merely a personal choice, but is essentially also a legal choice, we must differentiate between an individual’s right to freedom of religion and its legal implications on others.
‘Conversion shouldn’t be kept secret’
It is one thing to say that a Muslim must abide by procedures under Muslim laws to convert out of Islam. However, such statements ring empty when in most cases there is no such procedure, and in some cases attempts to convert out are subject to criminal punishment or results in a grown woman being placed in the custody of her father.
The right to marry and form a family is a basic human right. Yet because the change of status is so important and affects many facets of our lives, we impose duties for couples to announce their marriage to the community. Likewise a change of status following conversion cannot and should not be shrouded in secrecy and mystery.
Muslim laws allow for the absorption and incorporation of local customs and laws in the interest of justice. Muslim laws are not carved in stone and inflexible. If justice requires it, there is avenue to innovate and reform the laws. For example, in Malaysia, a spouse is entitled to harta sepencarian (jointly acquired property). In other Muslim countries, a spouse is not given any right to claim for harta sepencarian, yet this Malay custom has been incorporated into the Malaysian enactments.
The government’s announcement of attempts to tackle these issues is welcome. While mediation is to be encouraged, resolving these issues also requires clear legal rules and certainty. They cannot be made subject to the discretion of authorities or mediating bodies.
Resolving issues surrounding conversion requires resolute courage and empathy for all parties involved. At no time must we lose sight of the basic principles of fundamental liberty, fairness and justice. It is once again time we hunker down to look for real solutions.
Contributed by Zarizana binti Abdul Aziz. Zarizana Abd Aziz is a member of the Human Rights Committee, Bar Council Malaysia. For more information, visit http://www.malaysianbar.org.my/human_rights/. Complaints of rights violations may be forwarded to oysim@malaysianbar.org.my for the consideration of the committee.