This paper intends to discuss the position of Islam within the Federal Constitution with regards to matrimonial disputes involving non-Muslim couples, married under the civil law, wherein one of the spouses converts to Islam. It will be proposed throughout this paper that the approach in resolving the nature of these disputes shall be by applying the necessary Syariah principles through the Syariah Court system, as opposed to the Civil law system. It will also be proposed that this approach is within the literal as well as spiritual intent of our Federal Constitution. The first reference made would be Article 3 (1) (Federal Constitution, Article 3) of the Federal Constitution, wherein Islam is stated as the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation. It is submitted that the phrase “Islam is the religion of the Federation” is not a symbolic statement. The Federal Constitution is not written for the purpose of a mere declaration.

The Constitution is written in order to be given life. It is an organic document which needs to be interpreted, applied and set to administer and serve the evolving needs of our society. It is a declaration and intention of the constitution of our country, that Islam as the religion of the Federation must be applied whenever permissible and applicable to allow Muslims to be governed by their Islamic laws. It should be noted, that this provision found in Article 3(1), is in no way against the rights of the non-Muslims of our country to practice their own religion pursuant to Article 11(1). The real meaning and application of Article 3(1) has been clarified on various occasions by our courts. First and foremost, the High Court decision in Meor Atiqulrahman v Fatimah Sihi and others (Meor Atiqulrahman bin Ishak & Ors v Fatimah Sihi & Ors[2000]  1 MLJ 393), reported in 2000, wherein the then Justice Mohd Noor Abdullah stated;

MALACCA: Funeral rites were carried out for Benny Tan (pic), a well-known local musician, at his family home in Bachang — minus his body. Tan, 56, who died on Sunday from heart complications after suffering a stroke, had converted to Islam without his family’s knowledge. On Monday night, several Malacca Islamic Religious Department (JAIM) officers arrived at Tan’s family home at 10pm with a Syariah Court injunction to claim his body for Muslim burial and to prevent a cremation. They asserted that Tan had converted to Islam several years ago by way of marriage in Selangor. However, family members questioned the matter and requested proof of Tan’s conversion. The matter was resolved yesterday morning when JAIM officers returned with evidence
that Tan had converted and taken the name Mohd Adam Tan Abdullah.

KUALA LUMPUR, 29 April 2009: The coalition of Muslim non-governmental organisations known as Pembela has described the cabinet decision against unilateral conversion of minors as "knee-jerk" and "lacking in sense". "The decision only temporarily alleviates the anxieties of one party, but creates more anxieties and questions for other parties," Pembela spokesperson Yusri Mohamad (President Of Malaysian Muslim youth Movement) said at a press conference today.

Another Pembela spokesperson, Zaid Kamaruddin, said the decision did "not make sense". Both men also noted that the cabinet decision was made without consulting state muftis or amending the relevant laws. Pembela was commenting on the cabinet decision that in cases where one parent converts to Islam, he or she did not have the right to unilaterally convert the children.