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Act 164 and The Surrounding Polemics


The recent amendment to Act 164 or otherwise known as Law Reform (Marriage and Divorce) Act 1976, has caused a lot of friction. Both political and apolitical quarters have had their fair share of coverage pertaining the issue. Some of the opposition is on the pretext of Section 88A, which was actually removed.

The effects of the amendment, either positive or otherwise are yet to be seen. Perhaps when the 2017 amendment is tested in the court of law can one determine its effectiveness or lack thereof. Some of those who are against this bill, do it because of the absence of Section 88A.

Section 88A would have made it compulsory to seek the approval of both parents in order to determine the religion of a minor. 88A, if passed might not be accepted by the vast majority of Muslims, as it is seen as a hindrance to the right of a child to be a Muslim.

As it is, according to the Federal Constitution a single parent can determine the religion of a minor. On the other hand however, just because the only religion on the identification card issued by the National Registration Department (NRD) is Islam, that does not mean the grundnorm of this country should be opposed.

Islam is the religion of the Federation, and likewise Muslims are identified in official documents. The label is not merely decorative, there are legal consequences as every Muslim is a subject of state fatwas and the Syariah Courts. That said, everyone who professes a religion other than Islam is free to chose whatever she pleases.

The ability to practice and believe in any faith is not hindered by the law, as long as a person is not a Muslim. The presence of Section 88A in this case would be aiming at Muslims or rather the conversion of minors to Islam. There is a bullseye drawn all over the term ‘Islam’.

If Islam was made an exception in Section 88A, then non-Muslims would accuse the Act of being inconsiderate and unfair. With no exception to Islam, the majority would be having the same opinion about the mentioned Act.

There are many cases where, Muslim children are brought up by their non-Muslim relatives. Islam would be maintained in the identification cards but in practice the religion of the child can be anything but. The question is, were both the parents consulted when bringing up this child with another faith? Or was it only one? Or neither parent ever concurred?

Legally these children are Muslims, at least on paper, but in reality things can be much different. Is the silent conversion of a minor without the sanction of parents considered legal? Silent conversions are not being mentioned. Who ought to fight for the rights of children born as Muslim but denied rights to the very religion they profess?

How did these many children having Muslim parents ended up living as non-Muslims despite the absence of permission from even one parent? So what happened to the legal system in this case? Was the amendment to Act 164 by design limiting the conversion to Islam and only Islam? Whereas any other religion would have been fine?

How can such a bias rule be justified? What happened to the idea of democracy, where majority rules? Is legality only an issue when it comes to Islam?

In case Section 88A was indeed approved, then it could have been difficult to convert minors to Islam, although for children born in Muslim families and raised by their non-Muslim relatives, the religion in practice, could be anything but Islam.

What happens to Muslim children that are brought up otherwise? They would then appeal to the Syariah Courts to change the religion in their identity cards. Apparently it is easier to change the religion of a person who is a Muslim to anyting else, as long as it is not done officially and/or legally.

How do the proponents argue to support such an Act despite the biased nature of it?

*Written by Rehan Ahmad Bin Jamaluddin Ahmad and Aidil Khalid. Views are of the writer(s) and do not necessarily represent the position of Menara.my in a particular issue.