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No end in sight to Indira’s plight

August 12, 2017

Writer says removal of clause on unilateral conversion from amendment to Law Reform (Marriage and Divorce) Act shows government is eager to please PAS.

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By Tay Tian Yan

I thought there was light at the end of the tunnel for Indira Gandhi.

Not quite.

The 2017 amendment to the Law Reform (Marriage and Divorce) Act (LRA) has now gone through without Section 88(A), which is supposed to extend protection to Indira and others suffering a similar fate due to the actions of their spouse.

Eight years ago, Indira’s ex-husband embraced the Islam and had his identity changed from K Pathmanathan to Muhammad Riduan Abdullah.

As if that was not enough, he even converted their one-year old daughter with the blessing of the shariah court.

Indira took the case to the civil court to fight for the custody of her daughter. The case lasted for years, going from the High Court to the Federal Court, in a dramatic twist that should make perfect teaching material for law students.

From a legal point of view, it involves a grey area between civil and Islamic laws and the ensuing confusion over legal jurisdiction.

Extrajudicially, it has evolved into a major social issue for our existing legal system has failed to provide an unambiguous verdict on this case such that similar incidents keep happening with no definitive solution in hand.

Other than Indira, we still have the cases of S Deepa and R Subashini, just to name a few.

To address the issue once and for all, the cabinet made a decision several years ago to avoid controversies over the unilateral conversion and custody of underaged children.

That was how Section 88A came about, which states that in the event either of the parents converted, their children can retain their original religion until they turn 18, when they will be able to decide which religion to embrace.

In other words, if this were to become law, Indira’s ex-husband would not have been able to unilaterally convert their young daughter, and he would have to settle the divorce with Indira in a civil court first instead of running away with their daughter.

Which should be a good thing, anyway, as it safeguards the right of the unconverted spouse while settling religious and social disputes.

Moreover, a distinct line will be drawn in the grey area between the civil and Islamic laws.

But the thing is, Section 88A is perceived by religious conservatives, including PAS, as transgression into the sanctity of the Islamic faith, and hence a political issue.

The retraction of Section 88A will render the LRA powerless in resolving the existing and future problems arising from religious conversion of underage children by one spouse.

Minister in the Prime Minister’s Department Azalina Othman Said cited the reason for the retraction as being to avoid a clash with the Federal Constitution, but we wonder why this concern had never been brought up earlier when drawing up the bill, such that it popped up only after two tablings.

Are there any other factors, extra-constitutionally?

Prior to the tabling of the bill, conservative forces – PAS included – were already vocal against the amendment bill. From their point of view, the bill has infringed upon Islam and the religious entitlement of Muslims.

It had been rumored that some sort of tacit agreement had been reached between the ruling coalition and PAS, whereby PAS will give its consent to the LRA amendment in exchange for Umno’s nod to the tabling of PAS president Abdul Hadi Awang’s private member’s bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).

The thing is, Act 355 has now been tabled (albeit yet to be debated and voted), but the LRA now has to relinquish its most substantial content.

Under the prevailing political climate, the ruling coalition seems eager to please the conservatives, more so to cooperate with PAS, at the expense of the amendment bill apparently.

We can see from here that the influences of conservative forces remain powerful, and are dictating the way the country is headed to in the future.

Tay Tian Yan writes for Sin Chew Daily.

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