JAIS, Body Snatching, Conversion, Apostates and the Courts

The Selangor Religious Department (JAIS) is at it again. Fighting over the bodies of dead people with their families.

Read about the details here:

NST Online: Religious dept and family in tussle over body
Sun2Surf: Family, JAIS in tussle over body

We seem to be digging deeper and deeper into these pits of religious conflict. There was Moorthy, then Shamala and now, Rayappan. The circumstances of each case are slightly different, Moorthy - a deathbed conversion disputed by his family, Shamala - a case where the husband converted himself and his kids without his wife's knowledge and this one - the convert has reverted to his original religion.

One thing each case has in common, is the fact that there were unhappy conversions involved.

Back in July, after the whole mess with the aborted Article 11 forums, I wrote an article about how tightening up the conversion procedures would be beneficial in preventing all this unpleasantness.

Refer to my blog here: A Solution to the Article 11 Impasse

Recently, in a sometimes heated discussion in Ipoh forums, I found out that it's an obligation for Muslims to welcome new converts as long as they are willing. This point was clear. And I accept that. As long as a person is an adult of sound mind, the decisions they make are binding, no matter how stupid those decisions are. When you knowingly buy a one way ticket, you stay on the train no matter what happens.

Having said that, my original framework articulated in A Solution to the Article 11 Impasse must still apply. A self imposed difficulty in rejecting willing converts is no excuse for turning a blind eye to obvious injustices perpetrated, unintentionally or otherwise with an express intention to manipulate Malaysia's intersecting civil-religious framework for personal gain.

One area where the religious/conversion environment is somewhat unsatisfactory to me - is the position of minor children. It amazes me how the conversion of a minor can be upheld by a court of law when one of the two parents was not even aware of the conversion. Seems to me like the court hereto ignores Section 5 of the Guardianship of Infants Act 1961, which states that:

(1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.

(2) The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father.

In the Shamala case, the high court upheld the conversion of minor children, even when they were converted by only the father, without the mother's knowledge. When asked to form a judgement whether an alleged conversion of a minor could be invalidated by a contravention of equal parental rights legislation (such as Section 5 of the Guardianship of Infants Act 1961 above), the civil court experienced osteoporosis of courage (ie. spinelessness) and without so much as a whimper, surrendered all jurisdiction to the Syariah court, on the strength of Article 121 of the Constitution.

To me, the civil court put the cart before the horse. Yes, Article 121 gives jurisdiction to the Syariah court in all matters concerning Muslims and Islam. But if we have reason to believe that the minor children were not legally converted (by the absence of the agreement of both parents), aren't they still non-Muslims until there is a [civil] judgement on the legality of a single-parent conversion of a minor child?

And to reinforce the partial jurisdiction of the civil courts in matters of conversion, we have to remember that a conversion is a 2 stage process:

1. The conversion out of a non-Muslim religion (civil jurisdiction), and
2. The conversion in to Islam (syariah jurisdiction).

If the conversion is being challenged at stage 1, shouldn't a judgement on stage 1 be issued first before proceeding to stage 2?

For reference, read this interesting article on the Shamala case:

Justice and jurisdictions
The Shamala Sathiyaseelan v. Dr Jeyaganesh C Mograrajah (Muhammad Ridzuan) custody case.

Rizal bin Chek Hashim
Aliran Monthly 2004:7
http://www.aliran.com/oldsite/monthly/2004b/7d.html

And just in case you were wondering, the resolution to Rayappan's case is simple to me. There is a set process of apostasy in order for a Muslim to renounce Islam. Did Rayappan fulfil and complete the process? It's that easy.