Marriage Amendment Bill Passed Minus Clause 88A

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Despite calls to reinstate a clause which would have barred unilateral child conversion, the Law Reform (Marriage and Divorce) (Amendment) Bill 2017 (LRA) was passed by Parliament at 12.45am today, after hours of heated debate.

Parliament “stopped the clock” short of midnight on Wednesday to allow the LRA Bill to be further debated before it was ultimately passed.

Following the second reading of the Bill, PAS lawmakers tried to veto the Bill by calling for a block vote.

However, they lacked the quorum requirement of 15 lawmakers for the House to record a vote.

The LRA Bill 2017 was tabled on Tuesday, with the withdrawal of Section 88A from the 2016 Bill that would have banned the unilateral conversion of a child to Islam.

On Monday, de facto law minister Datuk Seri Azalina Othman Said said Section 88A was removed so that the Bill would not be in conflict with provisions of the Federal Constitution.

The revised Bill drew criticism from several groups, including those from within Barisan Nasional, which argued that Section 88A was the key reason to amend the 1976 Act.

During the debate, Opposition lawmakers led by M Kulasegaran had called for the reinstatement of Section 88A, to which Azalina explained that it would not solve the issue of unilateral conversion. She said that more in-depth discussion was needed to find a more comprehensive solution.

Among the amendments to the Bill was Section 51, which allows either spouse in cases where one party has converted to Islam, to file for divorce in civil courts. It also enables the surviving spouse, children and parents of the Muslim convert who dies before the divorce goes through to claim matrimonial assets.

Azalina said the Bill was the first step towards resolving issues surrounding dissolution of marriages where one party converts.

She also called on Muslim converts to not “hide behind Shariah court judges” in the name of Islam, but to divorce their spouses responsibly in the civil court.

She said that the amendments are not aimed at undermining the powers of the Shariah Courts as argued by several PAS MPs, but to make sure a Muslim convert fulfils his or her obligations to their family.

In responding to Kuala Nerus MP Datuk Mohd Khairuddin Aman Razali At-Takiri’s argument that the amendments proposed for the LRA Bill contradicted Act 303, she said, “I understand what you’re saying about the existence of the Act 303. Everyone knows that, but this is to give them the space to file the petition. So he has a choice to solve the problem.”

“Yes he’s Muslim, but should he just leave his family hanging? I am not married, even I am angry. You get married then you convert and then you run away from your responsibilities, don’t want to pay alimony after converting. Islam is a responsible religion.

“Don’t tell me once you converted to Islam, you want to abscond from responsibilities!” Azalina said.

Reactions to the withdrawal of Section 88A included Hindraf chairman Waythamoorthy saying it is all about staying in power, not resolving the child custody problems faced by non-Muslim spouses of those who convert to Islam, FMT reported.

Explanations by cabinet members as to why the clause to prevent the unilateral conversion of a child has been dropped are nothing but a political charade, he said, adding that it was merely aimed at ensuring they continued in power.

He charged that, with all the delays and, now, the dropping of the clause in the Bill, the government never had the intention of passing a bill to stop unilateral conversion.

Waythamoorthy asked, in a statement issued yesterday, why the constitutional question, if it was really an issue, had not been addressed since 2009 when the cabinet decision to end unilateral conversion was made.

During a press conference yesterday, Hindu mother M Indira Gandhi pleaded with Putrajaya to provide a feasible solution to parents battling unilateral conversion of their children.

The mother of three lamented about her and her children’s uncertain future, with the omission of Section 88A.

The clause, if it had been included and subsequently became law, would require both parents to provide consent before either one attempts to convert their children to Islam.

“I have on numerous times, gone up and down to courts, to Parliament. I have seen so many MPs about this matter hoping I will get a solution, justice. Eight years is just too long and still, we were just given a promise which is not being done. This is really heartbreaking.

“I can’t even see a future for myself and my children. Where should I go from here now? 

 “What is the solution for people like me?” a tearful Indira said.

Custodial tussles in cases of unilateral child conversions have been a growing concern over the years, with Indira’s case being the most prominent.

She has gone through an eight-year battle to gain custody of her youngest child Prasana Diksa who was taken away by her Muslim convert husband when she was an infant.

Her two other older children, Tevi Darsiny and Karan Dinish alongside Prasana, were all also converted to Islam without Indira’s knowledge.

Indira’s lawyer and Ipoh Barat MP M Kulasegaran called the dropping of the clause “silly, unfounded and unreasonable”.

Sisters in Islam (SIS) also expressed its disappointment over the aborting of Section 88A.

“SIS would like to reiterate that the current law has failed to serve justice or provide substantive legal recourse for the non-converting spouse which subsequently will cause more pain and harm towards them.

“With the long-drawn court processes in having to address jurisdictional issues, more often than not, prolongs the uncertainty and denies justice to be immediately upheld for the families concerned,” the women’s group told Malay Mail Online in a statement on Aug 7.

The group also criticised Putrajaya for having “lack of commitment” despite promising to address the matter in 2016.

“Withdrawing the Bill shows lack of commitment by the government to uphold and protect the rights of non-converting spouses especially in cases where there is unilateral conversion to Islam.

“It is reminded that in 2016, the government had expressed commitment in amending and improving the existing law to resolve this issue, given that Malaysia is a plural society and this was supported by the Prime Minister, Datuk Seri Najib Razak and the Cabinet,” SIS said.

G25 member Datuk Noor Farida Ariffin said, however, that Section 88A was problematic, citing lawyers who said it was arguably unconstitutional because it negated religious freedom for minors below 18 and did not adequately address cases of sincere conversions to Islam.

“For example, a Christian mother with a newborn child sincerely converts to Islam. You would now have a situation where a Muslim convert has to ensure that the child under her custody has to be raised a Christian. This is a very strange outcome and might arouse resentment among religious communities.

“An appropriate amendment should be made to the Administration of Islamic Law Act to ensure that a child of a civil marriage is only registered a Muslim if civil courts grant an order to that effect. That should resolve the issue and avoid negative sentiments,” she told Malay Mail Online.