Remarks Reportedly Made by Minister in the Prime Minister’s Department Regarding Unilateral Religious Conversion of Children are Erroneous, Unfortunate and Regrettable

The remarks by Minister in the Prime Minister’s Department, Dato’ Seri Jamil Khir Baharom,  reported to have been made by him in Parliament that, based on the decision in the Federal Court in the case of S Shamala, “the consent of just one parent was sufficient to convert the religion of the child because the words used in Article 12(4) (of the Federal Constitution) is parent or guardian, instead of parents or guardians, mean either the father or the mother or a guardian” are erroneous, unfortunate and regrettable. 

The Federal Court in the case of Shamala Sathiyaseelan v. Dr Jeyaganesh C Mogarajah & Anordid not make any such decision.

On the contrary, the Federal Court had declined to address and make a decision on the issue of whether the unilateral conversion to Islam of the children in question was lawful and constitutional.  The case was dismissed by the Federal Court purely on the basis that S Shamala had absconded from the jurisdiction with the children and was therefore in contempt of court. 

Article 12(4) of the Federal Constitution provides: “For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” (emphasis added).  The same gender reference to “his” appears in Article 12(3).

It has to be borne in mind that Article 12(4) has to be read with Article 160 and the Eleventh Schedule of the Federal Constitution.  Article 160 and the Eleventh Schedule govern the interpretation of the Federal Constitution.

Article 160, which refers to the Eleventh Schedule, states that “words importing the masculine gender include females”; and “words in the singular include the plural, and words in the plural include the singular”.

If the words of Articles 12(3) and (4) were to be taken literally as they appear, then they would be read to only apply to conversions of males under the age of 18 years, and would not apply to females.  This meaning or discrimination is clearly not the intention of such a provision in the Federal Constitution.  A sensible application of the specific provision in Article 12(4), read with Article 160 and the Eleventh Schedule of the Federal Constitution, would mean that the word “his” also means “her”, so that Article 12(4) is applicable to both male and female children.

Similarly, this would  apply to the word “parent”.  We cannot selectively apply the interpretative provisions of Article 160 and the Eleventh Schedule to only part of Article 12(4).  Therefore, a consistent application of Article 160 and the Eleventh Schedule would require that the word “parent” in the singular would also mean “parents” in the plural.

In this regard, Article 12(4), read with Article 160 and the Eleventh Schedule, must be construed as requiring the religion of children, whether male or female, under the age of eighteen years to be decided by both parents, in cases where both parents are alive.

Accordingly, unilateral conversion of minor children to any religion by one parent, without the knowledge or consent of the non-converting parent would be unconstitutional, illegal and void. Any legislation inconsistent with this principle would thus be unconstitutional, unless there is a prior amendment to Article 12(4).

The case of Subashini Rajasingam v Saravanan Thangathoray is also not authority for the interpretation and meaning of Article 12(4) of the Federal Constitution and the word “parent” found therein.  That Federal Court decision concerned appeals with respect to the High Court’s refusal to grant an application by the wife for interim injunctive relief against the husband, and the grant of an Erinford injunction pending the appeals to the Court of Appeal being disposed of, and subsequently pending the appeals to the Federal Court.

The Federal Court dismissed the appeals on an initial and technical point, that the petition for dissolution of the marriage and for ancillary or consequential relief (such as for custody of the children) filed by the wife was premature and not in compliance with section 51(1) of the Law Reform (Marriage and Divorce) Act 1976.  That section states that a person may petition for dissolution of a marriage and seek ancillary or consequential orders only after the expiry of three months from the date of the other spouse’s conversion to Islam.  In the Subashini case, the three-month period had not yet expired when the wife filed her petition for dissolution.

Therefore, the discussion by the Federal Court thereafter on the meaning of the word “parent” in Article 12(4) of the Federal Constitution is obiter dicta, a legal term that means “other statements not required for the decision in dismissing the appeal”, and is therefore not a binding statement of the law.

The Malaysian Bar recalls the Cabinet directive announced in April 2009 through the former de facto Law Minister, Dato’ Seri Mohamed Nazri Abdul Aziz, that the children of an estranged couple should remain in the religion of the parents at the point of their marriage.  In addition to being the correct constitutional position, this directive also serves to be just and fair.

The unilateral conversion of minor children to any religion by a parent, without the knowledge or consent of the non-converting parent, creates social injustice, violates the rights of the non-converting parent, and is contrary to our constitutional scheme.

The Malaysian Bar also recalls that the Government had sought to introduce appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976 to provide that both parents must consent to the change of religion of a minor child.  This is the correct constitutional position, and should be consistently reflected in all relevant legislation.

The Malaysian Bar urges the Government to renew its initiative to introduce these amendments, and to ensure that the amendments and its underlying principle are reflected consistently in all legislation.

 

Christopher Leong

President

Malaysian Bar

 

19 June 2014