Haniff Khatri Abdulla, who is also the legal aide to former prime minister Dr Mahathir Mohamad, said Islamic scriptures stated that when a parent converted to Islam, his or her child would automatically be a Muslim too if the child had yet to reach puberty.
He had earlier expressed support for former chief justice Ahmad Fairuz Abdul Halim’s interpretation of the Federal Constitution, that any law which contradicted Islamic jurisprudence derived from the Quran and Sunnah was null and void.
“In Islam there is jurisprudence dealing with issues that arise when a person converts to Islam,” he told FMT.
“These include disputes over what happens to the convert’s previous union, to the child from that union, the religion of that child, the matrimonial and custodial rights.
“On that basis, any amendment to the Law Reform (Marriage and Divorce) Act 1976 (Act 164) which does not comply with Islamic jurisprudence, in that situation, would be null and void. That’s what I’ve been arguing for the last 12, 13 years.”
The amendment bill, which aims to help resolve interfaith custody conflicts between Muslim and non-Muslim parents, was tabled in Parliament last November. It followed several cases of custody battles that went to the courts when one spouse converted the child without the consent of the other, causing trauma for all parties, especially the young children.
Act 164, once amended and enforced, would let only the civil courts determine matters involving civil marriages, even if one spouse converts to Islam.
The amendments proposed under the Law Reform (Marriage and Divorce) (Amendment) Bill 2016 also includes a new Section (88A) which explicitly states that “both parties” in a civil marriage must agree to the conversion of a minor to Islam.
“Yes, I would say that the proposed amendments would be null and void under Article 4 of the Federal Constitution read together with Article 3, as it goes against Islamic jurisprudence.”
“Even though the spouse originally is a non-Muslim, and the other spouse remains non-Muslim, it does not, on the face of it, interfere with the rights of the non-Muslims,” he claimed.
Haniff Khatri added: “When one spouse converts to Islam, automatically the Islamic jurisprudence applies to that person because Islam is the supreme religion for the federation, and it is the courts’ duty to apply Islamic jurisprudence on the Muslims.”
However, Haniff added that as Islamic jurisprudence was “fair and just”, it did provide the mother with the custody of her child, even if the mother was a non-Muslim and her former husband and her child were Muslim converts.
“So there is no issue of custody. The only issue is, therefore, the upbringing of the child which must be supervised, in my opinion, by the Islamic authorities.
“But you can place a condition whereby the relevant state Islamic council must be allowed access to the child at least once a month, to ensure the child has access to the necessary teachings of Islam,” he said.