Abstract
This article examines the complex legal and social implications surrounding the unilateral conversion of minors to Islam in Malaysia, a multi-ethnic and multi-religious nation. It highlights the significant controversy arising from such conversions without the consent of one parent, which often leads to parental child abduction and deepens existing tensions within families and communities. Amidst the jurisdictional conflicts between Civil and Syariah Courts, particularly in light of the Federal Court's ruling in Indira Gandhi v Pengarah Jabatan Agama Islam Perak & Or, the article evaluates the potential for the best interest of the child principle, as articulated in Article 3 of the Convention on the Rights of the Child, to bridge legal discrepancies and protect children's welfare. Through a detailed analysis of domestic legislation and relevant case law, the article underscores the necessity for legal reforms, including aligning State Islamic laws with constitutional mandates and enhancing the enforcement of custody orders across jurisdictions. It also calls for increased collaboration amongst judicial, academic and civil stakeholders to ensure the protection of children caught in these disputes, advocating for a holistic approach that prioritizes their best interests in a pluralistic society.
Keywords
Introduction
Malaysia, as a multi-cultural and multi-religious nation, recognizes Islam as its official religion while granting freedom to individuals of other faiths to practice their religions peacefully and harmoniously. 1 This principle is enshrined in the Federal Constitution, which guarantees every person the right to profess and practice their religion, subject to certain restrictions on its propagation. 2
However, the unilateral conversion of minors to Islam without the consent of one parent has sparked significant controversy and discontent amongst Malaysia's diverse ethnic and religious communities. This practice has intensified debates surrounding family dynamics in a multi-cultural society where child custody rights and a child's religious upbringing often create deep divisions between the converting parent and their non-convert partner.
The complexity of this issue is heightened when one parent abducts the child, removing and retaining them without the other parent's consent, often motivated by fears of losing custody. Parental child abduction may stem from various factors, including the belief that both parents traditionally hold equal rights over their children. In some cases, the abducting parent may view the removal of the child as a necessary escape from domestic violence, financial hardship or perceived threats from the left-behind parent. Additionally, dissatisfaction with prior court decisions may further exacerbate situations leading to abduction, resulting in both domestic and international scenarios.
Existing literature has primarily examined the foundational aspects of Malaysia's domestic legislation through the lens of relevant case law, 3 while others have engaged in comparative analyses of the Hague Convention on the Civil Aspects of International Child Abduction (1980) and domestic legal frameworks, 4 addressing conflicts of law. 5
This article does not aim to explore the role of Malaysian courts in the ‘judicialization of religion’, 6 the discourse on establishing an Islamic State in the context of Article 3 of the Federal Constitution and religious conversion from Islam to Christianity, 7 nor the controversies surrounding misconduct by public officials. 8 Instead, it focuses specifically on the unilateral conversion of minor children to Islam, the jurisdictional conflict between Civil and Syariah courts, and evaluates whether the adoption of the best interest of the child principle from Article 3 of the Convention on the Rights of the Child (CRC) could provide a viable resolution to these pressing issues, thus addressing a significant gap in the existing scholarship.
Utilizing the case of Indira Gandhi v Pengarah Jabatan Agama Islam Perak & Or and Other Appeals [2018] 1 MLJ 545 as a focal point, this article investigates how parental child abduction arises from unilateral conversions to Islam, emphasizing the jurisdictional conflicts between Civil and Syariah Courts. It further explores potential avenues for redress within Malaysia's domestic legal framework and assesses the applicability of the Hague Convention in instances of cross-jurisdictional abduction, concluding with recommendations aimed at reducing the incidence of parental kidnapping and facilitating prompt resolutions for affected children. While the intersection of domestic law and the Hague Convention has been extensively studied, this article elucidates the reasons these frameworks failed to assist Indira Gandhi in the recovery of her abducted child.
This article is organized into eleven sections. Following the introduction, the section ‘The constitutional basis of Malaysia's dual legal system’ provides a brief overview of the constitutional foundations of Malaysia's dual legal system, subsequently highlighting the jurisdictional conundrum between the Civil and Syariah courts in the section ‘Jurisdictional conflict in Malaysia's dual legal system’. The focus then shifts to the Federal Court's decision in Indira Gandhi v. Pengarah Jabatan Agama Islam Perak & Or in the section ‘Case summary: Indira Gandhi v. Director of Islamic Religious Affairs Perak & Ors’, followed by an analysis of this ruling through the lenses of parental consent, the best interests of the child and the interactions between jurisdictions in the section ‘Legal analysis: parental consent, child's best interests and jurisdictional interaction in Indira Gandhi’. Although the apex court's decision offers a measure of clarity, additional concerns emerge in the section ‘Rethinking jurisdiction and child welfare in Malaysia's dual legal system’. The sections ‘International child abduction and the limits of legal recourse in Malaysia' and ‘Foreign custody orders and the welfare principle in Malaysian law’ further explore the limitations of legal recourse in cases of international abduction and the enforcement of foreign custody orders, respectively. The section ‘Best interest of the child principle’ examines the application of the paramountcy principle within the Malaysian context, while the section ‘Reforming Malaysia's legal framework for unilateral conversion, parental child abduction and custody’ provides suggestions for reform, culminating in the conclusion presented in the section ‘Conclusion’.
The constitutional basis of Malaysia’s dual legal system
Malaysia has a dual legal system. The dual legal system, comprising civil and Islamic (Syariah) law, 9 is constitutionally entrenched and reflects the country's historical, religious and colonial legacies. The foundation of this system lies in the Federal Constitution of Malaysia, which delineates the respective jurisdictions of the federal and state governments. 10
Article 3(1) of the Constitution declares Islam as the religion of the Federation, while simultaneously safeguarding the right of non-Muslims to profess and practice their religions in peace and harmony. 11 The most significant constitutional provision underpinning the dual legal system is found in the Ninth Schedule, specifically List II (State List). 12 This provision grants state legislatures exclusive authority over matters of Islamic law, personal and family law 13 for persons professing the religion of Islam. These matters include, inter alia, succession, marriage, divorce, maintenance, adoption, legitimacy, guardianship, religious endowments (wakaf) and Islamic charitable trusts (zakat and fitrah). 14
Each of Malaysia's 13 states, along with the Federal Territories, is empowered to:
Enact legislation on Islamic law applicable to Muslims within its jurisdiction. Establish Syariah courts to adjudicate disputes arising under such laws.
This constitutional arrangement was preserved and extended when Sabah and Sarawak joined the Federation in 1963, and when the Federal Territories were later established. Although the Federal Territories fall under the direct administration of the federal government, they too maintain their own Islamic legal institutions. 15
In contrast, civil law in Malaysia is governed by federal legislation and administered by civil courts, which are based on the common law system inherited from British colonial rule. These courts have jurisdiction over criminal law, commercial law and general civil matters, and they do not have authority over matters within the exclusive jurisdiction of the Syariah courts.
The result is a constitutionally sanctioned dual legal system, where Civil and Syariah courts operate in parallel, each with distinct jurisdictions. 16 While civil courts serve all Malaysians regardless of religion, Syariah courts are limited to Muslims and to matters explicitly enumerated in the State List. This duality reflects Malaysia's commitment to accommodating its multi-religious and multi-ethnic society, balancing the role of Islam as the state religion with the constitutional guarantee of religious freedom.
Jurisdictional conflict in Malaysia’s dual legal system
Given Malaysia's constitutionally entrenched dual legal system, the civil courts oversee family law matters for non-Muslims under statutes such as the Law Reform (Marriage and Divorce) Act 1976 (LRA) and the Guardianship of Infants Act 1961 (GIA).
This bifurcation functions effectively when parties remain within their respective legal domains. However, jurisdictional conflicts arise in cases involving interfaith marriages or religious conversions, particularly when one parent converts to Islam and seeks custody of children under Syariah law. 17
The Islamic Family Law (Federal Territory) Act 1984 (IFLA) provides that custody (hadhanah 18 ) of Muslim children typically rests with the mother until the child reaches the age of discernment (mumayyiz 19 ), after which the child may choose which parent to live with. 20 However, custody is contingent on the custodian being Muslim, 21 as the child's religious upbringing is deemed paramount. The requirement for the parent with custody of the child to be Muslim is intended in Islamic law to ensure that the child is raised as a Muslim. Given that the purpose of hadhana is to ensure the child's well-being, which includes the inculcation of the teachings of Islam, the law must protect the child from anything that might lead to the child's ruin, such as the destruction of his faith. 22 A non-Muslim mother might be seen to unduly influence the child's faith by instilling disbelief in the child.
In contrast, under the LRA and the GIA, both parents have equal custodial rights, and the child's welfare is the paramount consideration, with no religious requirement imposed on the custodian. This divergence becomes problematic when Civil and Syariah courts issue conflicting custody orders, particularly in cases of unilateral child conversion. While civil law attempts to accommodate such scenarios (e.g., section 51 of the LRA 23 ), 24 the lack of clear jurisdictional boundaries often leads to legal uncertainty, parental abduction and communal tension.
This is evidenced by several cases adjudicated before the 2018 Indira Gandhi decision. Although Islamic law does not apply to non-Muslims under Malaysian legal doctrine, the conversion of a minor to Islam, especially in the context of interfaith parental disputes, has substantial legal and social ramifications for non-Muslim parties. The conflict regarding the choice of religion for a child by parents fundamentally hinges on the interpretation of Article 12(4) of the Federal Constitution, as well as the provisions governing the conversion of minors to Islam, found in the state enactments.
The evolving trend in Malaysian judicial decisions pre-Indira Gandhi Federal Court regarding this issue has been one of ‘parent's consent’ instead of ‘parents’ consent’. In the cases of Shamala Sathiyaseelan v. Dr. Jayaganesh & Anor, 25 Subashini a/p Rajasingam v. Saravanan a/l Thangathoray & Anor, 26 and Nedunchelian V. Uthiradam v. Nur Shafiqah Mah Singai Annal & Ors, 27 the civil courts determined that the consent of a single parent suffices for a child to officially convert to Islam and be registered as a Muslim. These rulings effectively allow either spouse converting to Islam to register their children immediately upon conversion, with the expectation that the Syariah courts will subsequently grant custody rights.
This trend continued in the Indira Gandhi case, as evidenced by the High Court's and Court of Appeal's decisions until the Federal Court's decision in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals.
The Indira Gandhi case (analyzed in detail below) raises critical questions regarding the limits of religious authority, the scope of civil jurisdiction and the protection of minority rights within a plural legal system. It has attracted significant jurisprudential and academic interest, as it engages with sensitive issues concerning the unilateral religious conversion of a minor to Islam and the associated act of parental abduction. The case serves as a focal point for examining the persistent jurisdictional conflict between the Syariah and Civil courts in Malaysia, particularly in matters implicating religious identity, family law and constitutional rights.
Case summary: Indira Gandhi v. Director of Islamic Religious Affairs Perak & Ors
The Indira Gandhi case represents one of the most prominent and contentious legal disputes involving the unilateral religious conversion of minors and parental child abduction in Malaysia. It has become a focal point in the ongoing discourse on the jurisdictional boundaries between the Civil and Syariah Courts, particularly in cases involving interfaith family disputes.
Factual background
Mohd Riduan Abdullah (formerly K. Pathmanathan), a Hindu by birth, entered into a civil marriage with M. Indira Gandhi under the Law Reform (Marriage and Divorce) Act 1976 (LRA). The couple had three children. In 2009, while the marriage was still subsisting, Mohd Riduan converted to Islam. Approximately three weeks later, and without the knowledge or consent of Indira Gandhi, he unilaterally converted their three children to Islam.
Subsequently, Mohd Riduan obtained a custody order for the children from the Syariah Court. His attempts to gain custody of the two older children were unsuccessful, as they remained with Indira Gandhi despite their conversion. Mohd Riduan abducted the youngest child, Prasana Diksa, then 11 months old, and went into hiding. He has since failed to comply with multiple court orders and has not appeared at several hearings.
Indira Gandhi filed for divorce in the civil court, which was granted based on Mohd Riduan's conversion to Islam. 28 She also initiated legal proceedings in the civil courts to challenge the validity of the unilateral conversion of her children.
High court proceedings
In 2010, the High Court in Ipoh 29 granted Indira Gandhi full custody of all three children, including Prasana Diksa. In 2013, she applied to have the certificates of conversion declared null and void, arguing that the prerequisites under Sections 96 and 106 of the Administration of the Religion of Islam (Perak) Enactment 2004 (ARIPE 2004) had not been satisfied. The respondents – Mohd Riduan, the Director of the Perak Islamic Religious Affairs Department, the Registrar of Muallafs, the State Government of Perak and the Federal Government – objected to her application.
Nevertheless, the High Court annulled the conversions, declaring them unconstitutional, and ruled that the unilateral conversion of the children was invalid. The Court subsequently invalidated the Syariah Court's 2009 custody order and issued a mandamus directing the police to locate and return Prasana Diksa to her mother. 30
Court of appeal
In 2015, the Court of Appeal overturned the Ipoh High Court's decision. In a 2–1 majority ruling, the Court held that the civil courts lacked jurisdiction over matters concerning the religious status of a person who had converted to Islam. The Court further determined that such matters fell exclusively within the jurisdiction of the Syariah courts. It held that Section 101(2) of ARIPE 2004, a finality clause, precluded the civil courts from reviewing the Registrar's decision.
The Court also interpreted Article 12(4) of the Federal Constitution, which provides that the ‘religion of a person under the age of eighteen years shall be decided by his parent or guardian’, to mean that the consent of a single parent was sufficient for the religious conversion of a minor. 31
Federal court proceedings
In 2016, leave to appeal the 2015 Court of Appeal decision was granted. 32 The Federal Court upheld the Ipoh High Court's order directing the police to arrest Mohd Riduan for contempt of court. 33
In a landmark decision in 2018, the Federal Court 34 unanimously held that the unilateral conversion of Prasana Diksa was null and void. The apex court interpreted the word ‘parent’ in Article 12(4) of the Federal Constitution to mean both parents, where applicable. The Court affirmed that both parents possess equal rights in determining the religious status of their child. It further held that the procedural requirements under ARIPE 2004 35 had not been fulfilled, as the children were not present during the conversion process, and the Registrar lacked the jurisdiction to register them as Muslims.
Legal analysis: parental consent, child's best interests and jurisdictional interaction in Indira Gandhi
Parental consent and constitutional interpretation
The Indira Gandhi decision significantly reinterprets Article 12(4) of the Federal Constitution, which provides that the religion of a person under the age of eighteen shall be determined by their ‘parent or guardian’.
Previously, the dominant judicial interpretation, largely influenced by the authoritative Malay text (‘ibu atau bapa’) permitted unilateral conversion by one parent. The Federal Court's 2018 decision preferring a more harmonious approach reversed this, holding that the term ‘parent’ must be read contextually and purposively to reflect both parents, where applicable.
This interpretive approach aligns with Article 160B of the Constitution, which recognizes Malay as the authoritative text, and must still be read subject to Article 160(1), which allows plural construction of singular words. The Court's purposive interpretation reflects an awareness of the equal parental rights enshrined in family law. It moves away from a literalist reading that had previously enabled one parent – often the converting parent – to override the rights and custodial interests of the other.
Best interests of the child: A constitutional principle?
Although not explicitly framed as a welfare analysis, the case indirectly touched upon the best interests of the child, a principle embedded in Section 5 of the GIA 1961 and international instruments, such as the CRC, to which Malaysia is a party.
The Federal Court's reasoning effectively centres the welfare of the child by emphasizing procedural safeguards for religious conversion and rejecting conversions carried out in absentia, without the child's knowledge, participation or capacity to understand. The Court's rejection of conversions that fail to comply with the procedural requirements under ARIPE 2004, such as the child's presence before the converting authority and the utterance of the affirmation of faith (recite the syhaddah, as required under section 96(1) ARIPE), implicitly embeds child-centric considerations into the legal framework.
Yet, the ruling leaves open the question of psychological and emotional welfare, especially given Prasana Diksa's 15-year separation from her mother and siblings. The case also reveals the limits of legal formalism in protecting child welfare. Despite the Federal Court's ruling, Prasana Diksa remains unrecovered, raising serious concerns about the state's enforcement capacity and the practical realities of child protection under Malaysia's dual legal system.
Civil vs. Syariah jurisdiction: reasserting constitutional supremacy
The Indira Gandhi judgment critically redefines the scope and limits of Syariah jurisdiction, particularly in interfaith family disputes after the 1988 constitutional amendment to Article 121(1). 36 The Court reaffirmed that Article 121(1A) introduced to avoid jurisdictional overlap, does not oust the civil court's jurisdiction in matters involving non-Muslims.
The Court held that Syariah courts are creatures of State law, empowered only under the State List, whereas judicial power in Malaysia is vested solely in the civil superior courts under Article 121(1) of the Federal Constitution. Justice Zainun Ali emphasized that constitutional supremacy, rule of law and separation of powers necessitate judicial oversight by civil courts, especially to protect non-Muslims who cannot access Syariah forums. 37
The apex court clarified that the Syariah court's jurisdiction is confined to persons professing Islam and cannot acquire jurisdiction merely because one party converts. This is a constitutional recalibration of the jurisdictional demarcation between Civil and Syariah courts, and a necessary corrective to past judicial ambivalence that had allowed jurisdictional uncertainty to fester.
Rethinking jurisdiction and child welfare in Malaysia’s dual legal system
The Indira Gandhi decision marks a jurisprudential turning point in Malaysian constitutional law, particularly in two key areas: (1) the reassertion of civil jurisdiction in interfaith family disputes, and (2) the emergence of child welfare as a constitutional concern in religious conversion cases.
Recalibrating jurisdiction in a fragmented legal system
For decades, Malaysia's dual legal system has struggled with jurisdictional ambiguity, especially in cases involving conversion to Islam by one spouse in an interfaith marriage. The insertion of Article 121(1A) created a functional bifurcation between Civil and Syariah Courts, but offered little guidance on resolving jurisdictional collisions. Indira Gandhi reasserts a hierarchical understanding of legal authority: while Syariah courts derive power from State legislation, the civil courts derive their authority directly from the Constitution.
Importantly, the Federal Court rejected the notion that a religious act (conversion) can, by itself, deprive the civil courts of jurisdiction over non-Muslim parties. This interpretation prevents the instrumentalization of religious conversion as a tool for forum-shopping or evading civil family law obligations. In doing so, the Court reinforces constitutional supremacy over religious exceptionalism.
However, the decision also exposes the institutional fragility of the civil judiciary in the face of non-compliance and executive inaction. Despite the apex court's rulings, enforcement has been dismal, highlighting disconnect between adjudication and execution. The failure to enforce recovery orders despite the issuance of a mandamus against the Inspector General of Police, with the court affirming that the execution of warrants is a legal, not a discretionary duty, highlights a crisis of enforcement in the civil justice system. 38
Thus, while Indira Gandhi clarifies jurisdictional boundaries in law, it simultaneously reveals the limits of judicial authority in practice, particularly when legal orders confront religious politics and bureaucratic inertia.
Child welfare: From peripheral concern to constitutional imperative
The Indira Gandhi ruling implicitly shifts the legal paradigm from parental rights to child-centred justice. Though not framed explicitly in those terms, the Court's emphasis on procedural integrity in conversion, including the child's presence and understanding, signals a move towards recognizing children as rights-bearing individuals rather than mere extensions of parental will.
This stands in sharp contrast to earlier pre-2018 jurisprudence, where the child's welfare was subordinated to the converting parent's religious prerogative. By requiring both parents’ consent and rejecting conversions done in absentia, the Court affirms the child's dignity and autonomy, even if only procedurally. However, the absence of a developed best interest framework within the constitutional reasoning leaves room for further evolution. There remains a normative gap between what the law recognizes as procedurally valid and what is substantively in the child's best interests.
International child abduction and the limits of legal recourse in Malaysia
While the Indira Gandhi decision has clarified the jurisdictional complexities between Civil and Syariah courts, it has not resolved the issue of international parental abduction in cases like that of Shamala a/p Sathiyaseelan v Dr Jeyaganesh a/l C Mogarajah 39 and Raja Bahrin (below). Domestic legal conflicts in Malaysia become significantly more complex when international child abduction is involved, particularly in the context of divergent legal systems and the non-applicability of international conventions.
One such instrument, the 1980 Hague Convention on the Civil Aspects of International Child Abduction, plays a crucial role in facilitating the prompt return of abducted children across international borders. However, Malaysia is not a signatory to the Convention, a fact which significantly hampers its capacity to secure the return of children who have been wrongfully removed to or retained in foreign jurisdictions.
This limitation was starkly illustrated in the case of Raja Bahrin, 40 where an Australian mother was unable to invoke the provisions of the Hague Convention to recover her two children, who had been re-abducted to Malaysia by their father. Due to Malaysia's non-ratification of the Convention, the mother had no recourse to the international legal framework typically available in such circumstances. Compounding this difficulty was the dual legal system in Malaysia, which posed further jurisdictional and procedural challenges. A parallel can be drawn with the case of Indira Gandhi, where, despite extensive and costly litigation in the civil courts, the non-Muslim mother was unable to secure enforcement of custody orders, as the father and children remained outside the jurisdiction of the civil legal system and were instead under the purview of the Syariah Court.
Foreign custody orders and the welfare principle in Malaysian law
The enforcement of foreign custody orders in Malaysia further exemplifies the tensions inherent in its plural legal system. According to Section 27 of the Civil Law Act 1956, 41 foreign custody orders may be recognized by Malaysian courts. However, such recognition is not automatic but is subject to domestic legal principles, particularly the paramountcy of the welfare of the child.
This principle was affirmed in the case of Mahabir Prasad,
42
which involved the dissolution of a marriage between a Malaysian citizen and an Indian national. Following the breakdown of the marriage, the mother obtained custody of the couple's two daughters from a court in Mumbai. Although the children were residing with the father in Malaysia, his subsequent application for custody was denied because the Mumbai court's custody order precluded such a claim. In dismissing the father's appeal, the Federal Court cited the decision of the Privy Council in McKee,
43
emphasizing: It is the law of this country, and as it is in India, that the welfare of the infant must be the paramount consideration in child custody adjudication. Consequently, although our courts must take into consideration the order of the foreign court of competent jurisdiction, we are not bound to give effect to it if this would not be for the infant's benefit.
Thus, while foreign custody orders are persuasive, they are not determinative. The Malaysian courts retain the discretion to refuse enforcement where such orders are deemed inconsistent with the best interests of the child. A material change in circumstances is required to justify any departure from the foreign custody determination.
It is also significant that in Mahabir Prasad, both parents were non-Muslims. Had the father been a Muslim, the outcome may well have differed. In such a scenario, jurisdiction would likely have fallen within the scope of the Syariah court, where the legal and religious framework could preclude the return of children to a non-Muslim parent residing abroad. This underscores the legal asymmetries that arise in cases involving interfaith custody disputes and reflects the broader implications of Malaysia's dual legal system on family law adjudication.
Best interest of the child principle
The preceding sections have elucidated the interpretation of the paramountcy principle as it applies in both domestic and international contexts.
The (best interest of the child 44 ) principle inherently recognizes the vulnerability of children, providing them with special protections in varied contexts. The concept is multifaceted; it encompasses a right, a principle and a procedural rule. 45 These elements are distinct and require separate mandates from State parties. Therefore, as an interpretive legal principle, the interpretation that most effectively serves the child's best interests should be prioritized. 46 The principle acknowledges the vulnerability of the child and provides special protection for the child in any context. 47 Thus, the child's vulnerability must be considered before an assessment is made on the balancing of the other interests at stake.
For instance, the UK Supreme Court, in ZH (Tanzania) v Secretary of State for the Home Department, emphasized that the best interests of the child must be considered first, and only in instances where no compromise exists can other considerations override this principle, which is deemed ‘inherently more significant’ than competing interests, such as religion, culture and social practices. 48
Cardin, however, notes that a region's culture, religion and social practices significantly shape the understanding of a child's best interests.
49
She opined, Muslim countries determine the best interest of the child according to the religious and social values, and this typically leads their courts to conclude that it falls within the best interests of the child to have the child raised in the … nation or its respective culture… These cultural biases and … laws in Islamic countries raise obstacles to non-Muslim foreign parents.
50
This contextual understanding may pose challenges for non-Muslim foreign parents seeking custody.
Moreover, differing philosophies and customs within Syariah law may lead to discrimination against mothers, 51 which can adversely affect the child. 52 Adil and Saidon contend that the prioritization of Islam's best interests in custody rights often overshadows the more liberal interpretations that advocate for the child's overall welfare. 53
The application of the best interest principle in Malaysia
Although the best interest of the child principle is prominently articulated within Malaysia's dual legal system, 54 the intersection of domestic and international law reveals significant gaps. While Malaysia's civil courts have increasingly embraced child-centric principles, these are not applied uniformly across Syariah jurisdictions.
Islamic law prioritizes the religious upbringing of children, often necessitating that the custodian be a Muslim. This requirement can conflict with international norms outlined in the CRC, particularly Article 3(1), which asserts that the child's best interests must be the primary consideration.
Furthermore, Islamic law assumes that it is in a child's best interest to live with a Muslim parent, supporting the notion that the custodial parent must be Muslim to ensure the child's Islamic upbringing. Thus, a Muslim parent removing a child from a non-Islamic country to an Islamic country to raise the child under the principles of Sharia may be justified. Conversely, the return of a Muslim child to a non-Muslim parent may be seen to contravene Syariah law principles.
Despite the apex court's decision in Indira Gandhi, it is evident that the presumptions underlying Syariah law regarding the best interests of children are incongruent with the provisions of the CRC. Notably, neither the IFLA 1984, the ARIPE 2004, as illustrated in the Indira Gandhi case, nor the Administration of the Religion of Islam (Perlis) Enactment 2006, as relevant in the Loh Siew Hong 55 case, have integrated the best interest principle espoused by the CRC into their legal frameworks.
Further, although Malaysia's enactment of the Child Act 2001 56 was aimed at fulfilling its commitments under the CRC, the provisions of the CRC have not been fully incorporated into national law. While both secular and Syariah courts reference the best interests of the child principle, the divergent approaches adopted by each have resulted in inconsistent outcomes.
In cases of unilateral conversion leading to parental abduction, the interpretation of the best interests of the child frequently seems to favour the rights of the abducting parent, who is predominantly male in many instances. This raises serious concerns about the psychological trauma and distress inflicted on the child, including the loss of contact with the left-behind parent, and the disruption of social and educational support systems. Such outcomes cannot justifiably be seen as serving the child's best interests or welfare.
This shortcoming poses significant disadvantages for children who are subjected to abduction, whether into Malaysia from abroad (incoming abduction), beyond Malaysian borders (outgoing abduction) or across state lines within Malaysia.
The CRC's Concluding Observations for Algeria, a predominantly Muslim country, 57 underscore the necessity for state parties to ratify the Hague Convention, thereby illustrating a gap between the interpretation of the best interests of abducted children as per Algeria's Syariah law and the expectations established by Article 3 of the CRC. 58 Thus, it is equally insufficient for Malaysian states merely to echo the terminology of the child's best interests in their legislation. 59 What is required is substantive incorporation of CRC rights into domestic law, necessitating meaningful commitment and acceptance from both federal and state governments, as well as the broader community.
A solution?
There remains the potential for the Syariah Courts to recognize Article 3 of the CRC by treating the child's best interests as a primary consideration. Achieving this would require a liberal interpretation of Islamic custody law in cases of child abduction, 60 akin to the approach taken in Pakistan. 61 As noted by Yaqub, the Pakistani judiciary has utilized principles of Islamic law to affirm that a child's best interests necessitate their return to their mother, emphasizing the relational significance of a mother–child bond over the mother's religious identity. 62 This judicial interpretation reveals that Islamic custody law possesses the inherent flexibility to uphold the rights of children in line with CRC principles.
Thus, while awaiting necessary amendments to state and federal legislation, it would be prudent for Syariah Courts to adopt an interpretation that embodies the spirit of the best interest principle as envisaged by the CRC. This alignment would not only enhance the protection of children's rights within Malaysia's legal framework but also promote a more integrated approach to child welfare across differing legal systems.
Reforming Malaysia’s legal framework for unilateral conversion, parental child abduction and custody
In light of the Federal Court's 2018 ruling, State Islamic laws must be amended to align with Article 12(4) of the Federal Constitution. Until such amendments are enacted, state governments, Islamic bodies and religious councils need to ensure that both parents’ consent are obtained for any future conversions of minors to Islam.
Furthermore, there exists a pressing need to review and revise the various states’ Islamic regulations to facilitate the recognition and enforcement of out-of-state custody orders – specifically, those issued by Syariah Courts in different states, as well as foreign custody orders. Establishing a central registry within each state could enhance coordination of domestic procedures and provide essential services such as mediation and conciliation to resolve cross-border family disputes involving children.
To further enhance legal protections, a child protection registry for non-Muslim parents should be established, mirroring the provisions for Muslim parents. This registry would promote better management, coordination and enforcement amongst relevant stakeholders and law enforcement agencies to safeguard the rights of all parties involved.
Collaboration between state police and these registries would enable a more effective mobilization of law enforcement to ensure the enforcement of Syariah custody orders and facilitate the recovery and return of abducted children. Additionally, it is crucial to establish a specialized child protection unit within each state police department, staffed by personnel specifically trained to locate and recover abducted children.
The roles of state and non-governmental institutions in raising awareness about issues concerning families, children's rights and the principle of the child's best interests must be recognized and supported. Increasing public awareness of parental child abduction through educational campaigns represents a positive step forward. Such awareness can engage the community, families, neighbours and schools in acting as vigilant observers who report any cases of abducted children to law enforcement. Significant penalties must be imposed for aiding and abetting the commission of an offence as a deterrent in cases where individuals assist in the abduction, such as by organizing or sheltering the abducting parent and/or the child.
As for international child abductions, efforts have been made to encourage non-signatory countries to the Hague Convention to develop frameworks for addressing issues arising from international abduction cases. These efforts include bilateral agreements, 63 memoranda of understanding, protocols and initiatives such as the Malta Process, 64 aimed at fostering cooperation and providing for reciprocal enforcement of custody and access orders. These measures, however, have largely proven to be ineffective due to their non-binding nature. 65
Morley suggests that many Muslim countries perceive the implementation of the Hague Convention as potentially disruptive to their domestic legal systems or cultural norms. 66 This sentiment has been echoed in discussions, including an Expert Roundtable on the Hague-Convention in 2017, where it was suggested that Malaysia should refrain from acceding to the Convention. 67 Justice Anselmo Reyes highlighted at the 2016 International Malaysia Law Conference that Malaysia's reluctance stems from the belief that substantial changes to domestic law would be necessary for adherence to the Convention.
Emon, 68 however, posits that this perception may constitute a ‘false premise’. He argues that the reluctance of Muslim-majority states to adopt international private law instruments, such as the Hague Convention, arises not from conflicts with Syariah law but rather from a historically limited engagement with private international law. 69 He advocates for the establishment of jurisdictional rules in Muslim-majority countries that recognize foreign parties and laws while allowing for exemptions from domestic personal law, thereby facilitating international comity within the modern state system. 70
While Malaysia continues to hesitate in acceding to the Convention, there is a clear necessity for stakeholders to enhance their efforts in promoting the values and principles enshrined in the Hague Convention. Crucially, the Convention is not merely about child custody; it functions as a forum-selection treaty with the underlying premise that the best interests of a child are served by resolving parenting arrangements in the jurisdiction they are most closely connected to, namely, their place of habitual residence. 71
The path forward requires the engagement of judicial and academic experts to facilitate dialogue and improve understanding between the principles of the Hague Convention and Syariah law. Sharing expertise and providing judicial training on cross-border child abduction, mediation and conciliation strategies for family dispute resolution should be prioritized. This initiative could take place within the broader context of children's rights and protection, particularly in the ASEAN region. Additionally, maintaining a regional database of key legal decisions, interpretations of child custody laws and records of successful return cases would contribute significantly to the knowledge base of judicial and legal practitioners and serve as a valuable resource for future research.
Conclusion
Religious conversion remains a particularly sensitive issue in Malaysia, especially concerning the unilateral conversion of minors by a newly converted parent. Such conversions can have profound effects on family dynamics, often leading to social tension, distrust and ethnic discord within Malaysia's pluralistic society. One immediate consequence of this issue, particularly in the context of divorce and custody disputes, is parental child abduction.
Although the Federal Court's ruling in the Indira Gandhi case has clarified the jurisdictional conflict between Civil and Syariah courts regarding religious conversion, there has been little effort from the thirteen states and the Federal Territory to amend the Islamic legal framework or to modify relevant state and federal legislation in a manner that reflects the apex court's decision. This reluctance may stem from a combination of insufficient political will and communal support.
Without necessary reforms to the relevant state legislation, minor children converted without their consent remain effectively disenfranchised. Left-behind parents find themselves at a significant disadvantage, both physically and emotionally, as well as in terms of legal recourse. Unless these issues are promptly addressed, the current situation inadvertently rewards abducting parents, effectively legitimizing their unlawful actions.
The consequences are similarly dire, if not exacerbated, when children are abducted across Malaysian borders. The advantages of Malaysia acceding to the Hague Convention on the Civil Aspects of International Child Abduction are evident. The Convention would provide a robust legal framework for the prompt recovery of abducted children and ensure that their best interests are prioritized.
Yet, without sustained dialogue amongst Islamic scholars, Civil and Syariah judges, experts from Islamic religious departments and religious councils, coupled with a genuine commitment to safeguarding the welfare of the child, the prospect remains that minors will continue to be treated as pawns in broader socio-legal conflicts.
To prevent children from becoming collateral damage in these disputes, it is essential that all stakeholders collaboratively work towards reforms that genuinely prioritize the best interests of the child.
Footnotes
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.