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Friday, December 9, 2016

Azalina says cabinet agrees to amend Article 12(4) of constitution



The cabinet has agreed to amend Article 12(4) of the Federal Constitution to have a clearer meaning of the word “parent”, says Minister in the Prime Minister's Department Azalina Othman Said.
According to The Star Online, Azalina said this followed the advice from attorney-general Mohamed Apandi Ali to amend the provision in that article, as the words used were not certain.
“According to the AG, the word 'parent' can be read as mother or father but there are also lawyers who said that the word can mean to include both (mother and father),” she told reporters in Bandar Penawar, Johor.
Article 12(4) states that the religion of a person under the age of 18 years shall be decided by his parent or guardian.
Amending the Federal Constitution would require a two-thirds majority in Parliament.
Azalina said this when asked to comment on the move by the Perlis state legislative assembly allowing the unilateral conversion of children by a parent by passing an amendment to its Administration of the Religion of Islam Enactment 2016 yesterday.
This provides a change to Section 117, with the phrase in the Malay version, originally reading “father and mother or guardian”, to become “father or mother or guardian”, thereby giving consent for children below 18 years to be converted to Islam unilaterally.
The minister in a statement this evening said the amendment to the Law Reform (Marriage and Divorce) Bill 2016 (LRA), which had its first reading, may require constitutional amendment to Article 12 (4) to substitute the word 'parent' to the word 'parents'.
The amendment to the LRA, Azalina said, was timely and must be seen as a positive step and it was still under consideration of the House and the MPs would debate all the issues.
“There have been many debates on this matter at the moment including by scholars and legal practitioners,” she said.
“Once this amendment is passed, it becomes a federal law. It should be noted that Article 75 of the Federal Constitution provides that any state law that is inconsistent with a federal law, the federal law shall prevail over the State law.
Azalina also recognised the Perlis state legislative assembly's right to have the amendment.
“The recent amendments by the state assembly to the enactment, allowing one parent to convert a child to Islam is the prerogative of the State. Any state can pass a law or make amendments to any existing law within their jurisdiction as clearly stated in the Federal Constitution,” she said.
Three states require parents' consent
The minister noted there were three states which had enactments that allowed both parents' consent to convert a child to Islam.
She listed them as the Selangor, Penang and Terengganu state enactments.
The minister further vouched that the government was committed to solve the unilateral conversion issue holistically and inputs of all parties would be taken into account.
“I hope all parties will objectively look at this proposed amendments and avoid politicising it for any reasons or to make any premature statements,” she said in the statement.
Perlis Menteri Besar Azlan Man had said in tabling the amendment that Section 117 was amended to be consistent with the English version of the state enactment, where the word “parent” was used instead of “parents”.
The confusion arose following a Bahasa Malaysia interpretation of the Federal Constitution from the word "ibubapa" to become "ibu atau bapa".

In the English version, as argued in the M Indira Gandhi vs K Pathmanathan case in the Federal Court, the word parent includes both father and mother, as according to the lawyers, the Federal Constitution defines that the singular word should be read as plural and plural should also mean singular in terms of interpretation.
Following this, it was reported that lawyers in the Indira Gandhi case wanted a re-visit of the R Subashini vs T Saravanan case, where the Federal Court in 2007 ruled parent in the singular to be either father or mother or one parent.
It was also reported that an amendment to the Law Reform (Marriage and Divorce) Bill 2016, was tabled to prevent unilateral conversion.- Mkini

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