The Book of Prof Shad.docx

Before any conversion is allowed to be registered

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Before any conversion is allowed to be registered, there should be a prior judicially sanctioned resolution of the status of the marriage, the division of property and the custody and guardianship of children. The law applicable to all such matters should be the pre-conversion law i.e. the law under which the relationship was subsisting before the unilateral decision to convert disturbed the status quo. 70
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It does not arouse non-Muslim confidence if the personal tragedies that were lived out in the cases of Priyathaseny, Kaliammal, Saravanan, Shamala, Hakim Lee, Dalip Kaur and Soon Singh are adjudicated by the ecclesiastical courts of a faith to which they (or their families) claim they do not belong. An impartial adjudicatory machinery should be employed. For example in Ng Wan Chan v Majlis Ugama Islam [1991] 3 MLJ 174 where there was a dispute about whether a Buddhist man who had converted to Islam, had renounced it later on, the High Court accepted jurisdiction and made an objective decision. In cases in which one of the parties to a family law dispute is a Muslim and the other a non-Muslim, the matter should be committed either to the civil courts 82 or to a newly created Special Court or a Judicial Committee of the Conference of Rulers. The creation of a Special Court will require a constitutional amendment to harmonise the position of the Special Court with the existing Article 121(1A). From the constitutional perspective, if constitutional supremacy is to have any meaning then Schedule 9, List II, Paragraph 1 should not be allowed to trump fundamental rights. If Article 11(1) is to have any meaning, then criminalisation of apostasy simpliciter should be regarded as unconstitutional. But if a belligerent apostate, by overt actions (and not just silent beliefs), breaches public order, then a federal prosecution under section 298 of the Penal Code should be mounted. In dealing with apostates, the Muslim community must look within. It must seek to understand causes and work out preventive strategies. Faith cannot be ingrained through penal sanctions. Muslims must seek to win back lost souls through love and persuasion. In verse after verse, that is the exquisite message of the Al-Qur’an. International dimension: Several international documents safeguard freedom of religion including the right to convert from one faith to another. Among them are Article 18 of the Universal Declaration of Human Rights (UDHR) and Article 18 of the International Covenant on Civil and Political Rights 1966 (ICCPR). Article 1 of the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief protects religion of choice. It is silent on the right to change religion though it is arguable that this right is implicit in freedom of religion.
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