Custody Woes: PAS’ Calls for the ‘Desecularisation’ of Malaysian Law
Malaysia’s Islamists and conservatives, led by PAS, are challenging the country’s legal system, calling for the ‘desecularisation’ of Malaysian law in cases involving religious conversions.
Malaysia’s Islamists and conservatives are leveraging on the dissonance between recent state and federal court decisions on the unilateral conversions of minors to Islam to push for the increased influence of shariah law. Notwithstanding the Federal Court’s ruling in 2018 that any unilateral conversion of minors without both parents’ consent is unconstitutional, Islamist and conservative actors have tried to challenge this legal precedent and the plain reading of Malaysia’s Federal Constitution. Through lobbying in religious bureaucracies and shariah courts, the Islamists aim to deny non-Muslim parents in such cases their right to oppose the conversions and to retain custody of their children.
The case of Loh Siew Hong’s children being unilaterally converted to Islam without her consent underscores these tensions. Loh, born a Buddhist who became a Hindu upon marriage, struggled with her marriage and was a victim of domestic violence. Her former husband converted to Islam, took their children from the marital home when Loh was hospitalised, and unilaterally converted them to Islam without her consent. Loh traced her children to a shelter in Penang but was told they had been moved to Perlis. As her ex-husband was in prison, the Perlis Welfare Department took their children into care. When Loh first arrived in Perlis, she was not allowed to meet her children, although the High Court had granted Loh their sole custody, care and control. Loh is still fighting efforts by the Perlis Islamic Religious and Malay Customs Council (MAIPs) to deny her sole custody by arguing that her children practice Islam and should have rights belonging to new converts.
Loh’s case resembles Indira Gandhi’s in 2009, which underscored the conflicts of law and practice arising from the secular and shariah courts’ differing opinions on such cases. The Perak Shariah Court granted Gandhi’s husband Pathmanathan, who converted to Islam and unilaterally converted their three children to Islam, custody of the children. However, the Ipoh High Court subsequently granted Indira custody, declared unilateral child conversions unconstitutional, annulled the shariah court’s order, directed the police to arrest Pathmanathan, and demanded the return of the youngest child Prasana who was missing. In 2014-2015, the Court of Appeal reversed the High Court’s directive and upheld unilateral child conversions on the questionable basis that Malaysia’s civil courts had no jurisdiction over Islamic conversions.
Malaysia’s so-called ‘dual legal’ system allows states to maintain shariah courts but complicates matters involving the conversion and custody of minor children in marriages between Muslims and non-Muslims, as these cases illustrate. While it is clear and accepted that Malaysia’s secular Federal Constitution and its federal system of courts is supreme vis-à-vis the state-level shariah courts that oversee personal and family law cases involving Muslims, inconsistencies in judgements involving unilateral conversion in state-level civil and shariah courts have contributed to the confusion. Although non-Muslims are not subject to the shariah courts’ jurisdiction, this has not prevented state-level religious authorities from attempting to deny the former their parental rights over their children after unilateral conversions.
Malaysia’s Islamists and conservatives are leveraging on the dissonance between recent state and federal court decisions on the unilateral conversions of minors to Islam to push for the increased influence of shariah law.
This ambiguity has paved the way for Islamist actors and organizations to try to ‘desecularise’ Malaysia. ‘Desecularisation’ here refers to the Islamist push against secular laws and secularism, which coincides with the Islamists’ desire to control the implementation and interpretation of shariah. For example, Parti Islam Se-Malaysia (PAS) is pushing for Islamic law in Malaysia to fall in line with Islamist and conservative interpretations. Who decides, interprets, and formulates the country’s shariah laws is pertinent as more Islamist, conservative, traditionalist or revivalist elites are placed in positions of power in Malaysia’s religious bureaucracy and Islamic courts.
Currently, with Islamic affairs fully under PAS’ purview, the Islamist lobby is strong. Minister of Religious Affairs Idris Ahmad has signaled his willingness to listen to these lobbyists, including holding a roundtable with legal experts, academics and muftis on unilateral conversion. He declared that ‘The apex court ruling requiring consent from both parents in converting a minor to Islam is an “interpretation” of the Federal Constitution’. He added that the states controlled the administration of Islam and could enact laws as they wished, as this was their constitutional right. Similarly, Deputy Minister Ahmad Marzuk Shaary has supported states that allow unilateral conversion.
Clerics and Islamists have teamed up to champion for Loh’s children to remain under the Perlis Welfare department’s care. PAS asserts that the children’s status as converts must be prioritised so that they are not forced into apostasy. PAS has warned that Islam is in danger, claiming that Muslim rights are not defended under Malaysia’s constitution. Such calls to support shariah law have become a PAS signature to bait voters. PAS’s leader Abdul Hadi Awang has expressed dismay that the Federal Constitution was not interpreted within an Islamic context. PAS’s Ulama Council went further, calling on all state religious authorities in Malaysia to support unilateral conversions of minors.
Currently, Selangor, Sabah and Sarawak, where PAS and Islamists have less influence, ban the unilateral conversion of minors. Negeri Sembilan has tried to offer a middle ground. In 2015, it applied the ‘divorce first, then convert’ approach. The Yang di-Pertuan Besar of Negri Sembilan Tuanku Muhriz approved of this approach, but this workaround does not resolve the crux of the problem, where state-level judges, even in non-shariah courts, are being pressurized to rule in favour of the Muslim parent undertaking the unilateral conversion.
Islamists and conservatives pushing for desecularisation and Islamisation, if left unchecked, could threaten Malaysia’s social cohesion and inclusivity. Avid media and public interest and debate in this arena, however, will hopefully allow Malaysians from across the political and religious spectrum to forge a compromise that preserves the country’s delicate multi-ethnic, multi-religious balance.
Mohd Faizal Musa is a Visiting Fellow at ISEAS – Yusof Ishak Institute as well as Associate at Weatherhead Centre Harvard University working on Global Shia Diaspora.
Faris Ridzuan was Research Officer in the Regional Social and Cultural Studies Programme, ISEAS – Yusof Ishak Institute.