A decision in haste

Feb 4, 2018
– Pic for illustration purpose

OPINION

By Fariq Alsalam

Consent of both parents to a religious conversion making it more lawful or safer for the welfare of the child (convert) is a complete red herring.

The matter of Indira Gandhi vs Riduan as decided by the Federal Court of Malaysia raises more questions about parental and children’s rights as it does about why a decision such as this one is arrived at with scant legal reasoning to support it.

What is it about the unilateral conversion of a minor child from one religion to another by a parent with care and control that requires special constitutional interpretation or consideration by the Federal Court?

How much more important is the question of religion when compared to that of necessities such as nutrition, health, security and education for a minor? How does the constitution deal with each of these necessities and the consents required (if any) to provide them in the context of consent by one parent or both in a broken family.

Is food, health, security and education perhaps not more important than faith to a child when it comes to their welfare and well being? And is consent really necessary from both anyone in a situation where consensus (and consent) is almost impossible to secure from either parent for reasons of dysfunction divorce and separation creates?

Should unilateral decision making for any cause in the absence of consent of both parents in such situations (a broken family) not be considered equally ‘repugnant’ if one adopts the logic of the courts in Indira Gandhi vs Riduan?

The comments by G25, the Malaysian Bar and the opposition holus bolus on this matter is unhelpful. Their comments too are devoid of legal reasoning and consist of self serving statements.

The comments and public statements issued by these groups appear to be nothing more than an extension and a runt of the anti Islamic narratives that have pervaded and infected a very wide spectrum of society like the anti “red” campaigns of the 60’s and 70’s.

Consents singular or unified?

To emphasis the the red herring of joint consent being any better or more lawful or equitable than unilateral consent in such situations, take example of the Branch Davidian cult in Waco Texas 25 years.

Joint consent to joining what was a religion to some a cult to others, did not assist in preventing the deaths of over 100 mainly children and women in a gun battle with the FBI at their religious hideout. Yet many of the parents were highly educated people in a first world country. Joint consent failed to prevent the mass suicides of over 1,000 followers of Reverend Jim Jones in the People’s Temple in Jones Town Guyana in 1976. Neither has it rendered safe those converts to the many evangelical churches in the US and elsewhere robbed and raped in ritualistic services of surrender to “God’s ministers”.

Consent by both parents either jointly or unilaterally in any situation does not prevent the enormous psychological damage inflicted on children who with their parents join the other religions (cults) like the Korean Christian Moonies, the Catholic Church or the church of Scientology (now banned and labelled a cult in Germany and certain other countries). Neither has joint consent saved children from the Taliban in Pakistan and Afghanistan where both parents’ consents are readily given and the children actively encouraged to the madrasas and thereafter into the hereafter.

Unified or joint consent has not prevented the conversion to Christianity of Hindus, animists, pagans and Muslims, and others by evangelicals. This last example is particularly relevant to the point of consent and what it really means at law.

Consent

The Federal Court ought to have given more weight to the value and impact of consent (unilateral or joint) in an array of situations instead of confining it to a sensational situation with religious overtones to it. Nor did the court consider in greater depth than it did, in greater dimension and detail the impacts on religious conversion on children. Instead the court focused narrowly on the issue of the father leveraging the position of Islam to his advantage, using the Syariah courts to gain an advantage over the mother he may not otherwise have secured in a dysfunctional and alien import called the Family Law Act. That Act which has failed dismally in the west reflects none of the diverse and volatile cultural and religious nuances that is often found in non Anglo Saxon countries like Malaysia.

Consent cannot be said to be obtained unless it is informed and it is real. This is a problem many fail to understand. It is why parents or a parent has responsibility for the welfare of their children. Children have no legal capacity and cannot consent.

Consent by a parent to conversion of a child to Islam or any other religion or event which requires consent is not something that the court has reasoned or examined in depth or in a balanced way in this case.

The court was instead distracted and its attention diverted from that critical central issue of consent. It become captive to the ‘white noises’ in the background concerning the primacy of women’s rights over men, Islam in a pejorative context and the subject of control by one parent; a male and a Muslim at that.

Examples of ‘consent’ in the context of conversion

Seducing people out of hunger with the promise of food if they convert to Christianity cannot be said to be consent at all. Yet it is said to be given (and obtained) “freely” so in many other such situations when in fact it is not informed. Not many especially the evangelical Christians complain about such situations although consent in such situations is not real (or informed).

The court sadly did not consider the question of consent in the wider context involving the welfare of the children when it ought to have been the central theme of its focus. This could be because the question of consent was not pleaded thus.

Alternatively the more plausible and likely scenario could be argued, is that what the court acting as Pontius Pilate did, was to patch together an outcome under duress from an opposition lynch mob to deliver a popular rather than a satisfactory balanced decision.

The court failed to properly and in an erudite manner address the other sticking point in this case, that being the conflict of laws, powers and jurisdiction of a dysfunctional dual legal system.

The Syariah courts and laws on the one hand and the so called civil secular courts (read Christian civil courts) on the other are constantly in conflict over jurisdictional issues.

Consent and religion choices (or decisions) out of necessity

Taking the question of consent a step further lets illustrate the point with the example of a Jehovah’s Witness in this situation.

Let us for a moment assume Indira Gandhi is a Jehovah’s Witness like Riduan was during the duration of their marriage. Riduan subsequently converts to Islam on separation from Indira. Let us further in this context consider an event whereby the youngest child Prasana in Riduan’s control, inspite of a court order to the contrary, is faced with an immediate issue of a clear and present danger to Prasana’s life.

In a hypothetical situation Prasana is diagnosed with leukemia or has been involved in a road accident and is about to die unless she receives an immediate transfusion of blood.

Jehovah’s Witnesses like many Chinese eschew and refuse blood transfusions in any situation even if that situation threatens death. They refuse it for religious and cultural reasons.

In this example Riduan provides the consent to the hospital for a blood transfusion to Prasana and his actions offend Indira because it ‘violates’ her rights as a Jehovah’s Witness, a woman and a mother as well it violates (in Indira’s mind) Prasana’s religious beliefs and obligations in this regard. The situation matters not to Riduan because he no longer subscribes to the Jehovah’s Witness faith. The child is saved.

Now to put that example and situation in a different (social) context, lets assume that by becoming a Muslim Prasana has now been relieved of the stigma of her caste and caste obligations and the restrictions and limitations that go with it.

Where does the offence then occur in this matter and in matters like this which is becoming more common place in Malaysia?

Is it really a question of consent by two parents or is it a question of consent and parental rights in different situations which cannot be cured by changing the constitution from the bench?

Rewriting the religious text in islam

To suggest a conversion is not real because it lacks the procedural requirements (reciting the articles of faith in the presence of a registrar) is to make a farce of faith ( a belief) and the religion of Islam. Thats standing on ceremony.

Where in the Koran or in any other scholarly Islamic text do the words of the prophet echo the requirements of a state, that a profession or declaration of the articles of faith requires the presence of a registrar or a state legislative directive?

None of these matters are dealt with unfortunately in the judgement of a weak court in voluminous but narrow judgement.

Conclusion

The reactions of a wounded insulted majority in a replay of the Maria Hartogh case decided erroneously decades ago should send shivers down our collective spines rather than for this to be cause for rejoicing and jubilation.

A sensible court would have ordered mediation for the parties for the sake of the child now 10 years old.

Prasana has had little or no relationship or connection with her biological mother Indira Gandhi who is in these circumstances alien to her. – Fariq Alsalam is the pseudonym of a lawyer overseas

* The views expressed are those of the authors and do not necessarily reflect those of Malaysian Outlook.