Resolving the issues arising from inter-faith, inter-racial marriages

Attorney-General Tan Sri Abdul Gani Patail was blunt about the issue of inter-faith and inter-racial marriages that could risk national harmony, particularly the tussle over children in the different court systems in Malaysia.

It is not a new issue, but perhaps Malaysia's top federal lawyer was mistaken over the real problem from such unions. It really is not about two people from different races or religions marrying but more about a breakdown when one spouse converts to Islam and the other does not.

Because, anyone who marries a Muslim in Malaysia has to convert to Islam. No two ways about it.

But the issue of one spouse from a marriage between two non-Muslims, converting to Islam and then converting any children the couple had during their civil union, has become a nightmare for many.

“The increasing number of cases has also raised allegations of racial discrimination by the courts and authorities. The anguish to the families cannot be overstated and that is a fact.

“In this regard, the failure of the converting spouses to resolve the family arrangements prior to conversion and, in fact, attempting to use the different jurisdictions of the civil and Shariah courts to their advantage, jeopardises not only family harmony but potentially national harmony,” Gani said at the ILKAP National Law Conference 2014 last week.

He said the problem of enforcing conflicting orders from the civil courts and Shariah courts in such disputes then calls into question the Attorney-General’s Chambers (AGC) and police’s integrity, adding that this would hamper their ability to effectively carry out their duties.

According to him, proposed amendments to three laws were mooted in 2009 to ensure that matters such as child custody and child maintenance would be decided by the court where the marriage was registered.

The three laws are the Law Reform (Marriage and Divorce) Act 1976, the Islamic Family Law (Federal Territories) Act 1984 and the Administration of Islamic Law (Federal Territories) Act 1993.

But Gani said the amendments remain pending.

That is the pity, because the A-G is right that it risks national harmony and brings the issue of discrimination against one party in any court.

So what must be done? Simple, Putrajaya must ensure that the relevant laws that have loopholes or have too much grey areas must be amended to make them clearer and unambiguous.

After all, there was a Cabinet decision, during the Tun Abdullah Badawi administration, whereby it was stated that in disputes between a wife and husband over the religion of their children, the religion of the couple at the time of marriage should be the guiding principle.

In other words a man/woman cannot convert their children, who were born out of a civil union, to Islam without the consent of the spouse, who is a non-Muslim.

However, the problem is that a Cabinet decision cannot be enforced because it is not law. And the existing laws are too ambiguous or rather have loopholes that some are exploiting.

As is being done now, to the detriment of some spouses and the larger community and country.

At the heart of the matter is not the issue of inter-faith or inter-racial marriages that risk national harmony, but the decisions of those in the Shariah courts that ignore the laws of the land and decide based on faith. – November 19, 2014.

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