Reforming Our Family Laws
Is the Government reforming our family laws or is it attempting to consolidate the laws in line with an Islamic moral vision?
by Eugene Yapp
Several months back, online news portal malaysiakini reported that the Government intended to table bills to amend three laws in relation to matters of conversion and religion. The legislations affected were the Law Reform (Marriage and Divorce) Act 1976, Administration of Islamic Law (Federal Territories) Act 1993 and Islamic Family Law (Federal Territories) Act 1984. MPs were expected to debate on the amendments at the sitting in Parliament then.
However, the bills were never tabled and the debate never proceeded. This is because the Conference of Rulers decided to defer its decision on the proposed amendments pending additional views from the state religious councils. What the state religious council will say and the decision of the Conference of Rulers remain uncertain. That was June 2009.
Fast forward to November 2009. Rumour is rife that the three legislations will be tabled and debated upon at this sitting in Parliament, presumably some time in December after the budget debate gets underway. Irrespective of whether the bills or proposed amendment is debated, the feelings and impressions generated are that the amendments are unfavorable towards non-Muslim religious groups.
Family laws getting more Islamic?
The question that arises is: Is the Government reforming our family laws or is it attempting to consolidate the laws in line with an Islamic moral vision? Let's look at the proposed amendments and the implication thereof.
The amendments are premised on three principles in relation to the issue of conversion of one spouse to Islam. The three principles are:
- The civil court shall have exclusive jurisdiction to all matters relating to the dissolution of marriages contrac-ted under civil law;
- The religion of a child below 18 years of age shall not be changed by one parent without the consent of the other; and The converted spouse should not abdicate his duties
- and responsibilities under the civil marriage.
Are these principles brought through in the proposed amendments? The intended amendments may generally be summarised as follows:
- A mother or an adopted mother may give consent to a marriage for a person under 21 years of age;
- Duration for orders on custody and maintenance of a child pursuing further or higher education or training may be extended;
- Court may grant injunction against molestation at any time;
- Either or both parties to the marriage may commence proceedings to dissolve the marriage upon conversion;
- Conversion takes place upon uttering the two clauses of the affirmation of faith in accordance to Islamic law;
- Non-Muslim spouse or child(ren) may inherit assets of the deceased converted spouse without a will on condition that the wife and child(ren) prove they have contributed to the acquisition of the assets; and
- Court may allow an extension of more than three months where maintenance is secured.
Notwithstanding these, civil rights groups have expressed concerns that the proposals do not reflect the three principles agreed upon. Some concerns are as follows:
- Although either or both parties may petition for divorce, it does not provide for the remedy of judicial separation or nullity. This may be to the disadvantage of Roman Catholics and segments of conservative Christianity who do not permit divorce;
- Although conversion is constituted by uttering the affirmation of faith in accordance with Islamic law, it does not address the persistent problem of notification to the next-of-kin. It may be necessary to stipulate the need for registration and compulsory notification;
- The proposal to recognise non-Muslim spouse for inheritance should not be made conditional upon proof of acquisition of assets;
- The insertion of a three-month maintenance for wife and allowance of an extension is unnecessary and has the tendency to discriminate against poor families;
- and The proposed amendment does not at all address the 5. problem of children being converted by one parent without the consent of the other.
It does appear from the above that the proposed amendments may be influenced in part by an Islamic outlook. For example, why impose the three-month maintenance period for the wife, when current provisions do not limit a wife's maintenance to three months?
We venture to suggest that this is based on the Islamic principle of iddah where maintenance for Muslim women under Islamic law is limited to three months. Such principles are surely incompatible with contemporary civil/secular society like Malaysia whose laws are essentially derived from the common law.
Further, it may be that certain provisions within the proposed amendments lean in favour of Muslims. The pressing and persistent complaint that children are converted to Islam by a converted spouse without reference to or consent by the other is not at all addressed.
There is much ambiguity to essential questions such as who decides the custody, upbringing, welfare and religion of the child(ren) when one spouse converts to Islam. Ideally, such important and vital questions should be decided by both parents. If there is a dispute that cannot be resolved, the dispute should be referred to the civil courts in the best interest of the child(ren).
The proposed amendment does not address this situation as well. These uncertainties will not, in the long run, provide a lasting solution that is just and acceptable by both parties.
The sentiments are that the proposed amendments as they are do not fit well with a multi-ethnic and plural society like Malaysia without further or substantial revision.
Amendments to any civil legislation should be made based on civil/secular considerations and established legal theories such as justice and the individual right to freedom of faith and belief rather than on religious factors.
It should also solicit as wide as possible responses from all interested parties to seek and build a broad consensus on the issue before presenting them for debate. Such is not the case in respect of these proposals. There is therefore doubt and questions.
We therefore urged Christians in Malaysia to take cognizance of such issues, be informed and pray over the following:
- The proposed amendments be premised on a civil/secular outlook rather than on Islamic jurisprudential considerations;
- The proposed amendments will give due consideration for issues of justice, fair play, and upholding the individual freedom of faith and belief. It is only upon such principles that the negative impact of national disunity and disharmony may be arrested and brought to good; and
- The state religious council and Conference of Rulers will uphold the spirit as enshrined in the Federal Constitution and seek to give due expression to the interest and expectation of all communities, irrespective of whether they are the minority.
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