There is a degree of disquiet within a segment of the Muslim populace over the landmark decision of the Federal Court on 29 January 2018 nullifying unilateral conversions of minors to Islam and affirming that the consent of both parents is required. This is because the majority position in Islamic law is that the child follows the religion of the parent who has converted to Islam, be it the father or mother.
However if the Federal Court decision is viewed from the perspective of the underlying values and principles of the Qur’an and the example of the Prophet Muhammad (peace be upon him) it makes a lot of sense. The well-being of the child is paramount in Islam. In concrete language, a two month old baby who is being breast-fed should remain with her non-Muslim mother even if the father has embraced Islam. In this case it is not the religious identity of the baby that should be given priority. The bond between mother and child which the Qur’an treasures is of utmost importance.
Prioritising the welfare of the child and the mother-child bond and other principles that are implicit in the Federal Court decision such as the rights of both parents; male-female equality; the prohibition of coercion in all matters of faith; conversion with full knowledge of what the testimony of faith signifies; the importance of harmony in society; the protection of the dignity of both Muslims and non-Muslims; and ensuring social justice for all citizens regardless of their religious and cultural affiliation, are consonant with the Islamic public law doctrine of siyasah shar’iyyah. This doctrine “ which is recognized by all leading madhabs, authorises the lawful government to issue ordinances, enact rules and procedures, including legislation and policy measures, that serve the cause of justice and good governance, especially in situations where the rules of Shari’ah may have fallen short of addressing a certain situation or development.”
As Professor Hashim Kamali one of the world’s leading Islamic jurists and other authors point out in a policy paper published by the International Institute of Advanced Islamic Studies (IAIS) in 2012, “ Siyasah is an instrument of flexibility and discretion that enables government leaders to respond effectively to extra-Shari’ah issues, emergency situations and now modern society dilemmas, which may or may not have been regulated under the established Shari’ah. As the term suggests, policy measures that are so taken must be in conformity with the goals and purposes ( or maqasid ) of Shari’ah at the expense even of a departure from some ijtihadi rulings of Fiqh. Ibn Qayyim al-Jawziyyah ( d. 1350 CE) thus characterized siyasah as “ any measure which brings the people nearer to beneficence ( salah) and moves away from prejudice and corruption ( fasad) even though the measure in question has not been approved by the Prophet, pbuh, nor regulated by the revealed words of God.” When a siyasah-based initiative serves the cause of justice, it is deemed to be in harmony with the religion and can never be against it.”
The IAIS policy paper was translated into Bahasa Malaysia, updated and enhanced in 2016 by IAIS Deputy Chief Executive Officer, Dr. Mohamed Azam Adil and Ahmad Badri Abdullah. The Bahasa version has been widely circulated and yet in almost all the analyses and commentaries on the Federal Court judgement there is no evidence at all of the impact of the arguments advanced by the IAIS policy paper. This is a reflection of a much larger problem.
Apart from the fact that literate Malaysians do not really appreciate serious stuff whether in Bahasa or English, there is a certain mindset within the Muslim population in the country which constitutes a formidable barrier to intellectual discourse on matters pertaining to Islam. Positions associated with, and advanced by, the established, conventional ulama are invariably perceived as the indisputable truth, the only truth — even if there are other different views which are legitimate from a Qur’anic perspective. This is not just a Malaysian Muslim problem. In any number of Muslim majority societies, the word of the ulama on religious issues is almost sacrosanct. This gives them a grip over the Muslim mind — a grip which impedes reform-oriented ideas especially in relation to Islamic law and Muslim identity from striking root within the community.
Continuous, conscious efforts at awareness building will help to change attitudes among the masses. As shown by the experience of other Muslim majority societies, this process which takes time is often accelerated by a courageous and committed civil court system that is prepared to make decisions which on balance are seen as fair and just. An even greater impetus for change is a political leadership that has the integrity to push for reform through legislation and policy even if it means incurring the wrath of diehard conservative voices that have never really understood the progressive essence of Islam.
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