By Shamsher Singh Thind
I refer to the news article “Unilateral Conversion: Federal Law Prevails, Says Azalina” published by FMT December 9.
I agree with Azalina that Article 75 of the Federal Constitution (“FC”) provides that when any state law is inconsistent with a federal law, the federal law will prevail.
Unfortunately, it is easier said than done.
According to Article 128(2) of the FC, only the Federal Court shall have the jurisdiction to determine the question s that arise as to the effect of any provision of the FC, including the validity or otherwise of any state law under Article 75.
As such, if the federal government is serious about resolving the issue of unilateral conversion of a minor, then it should consider all the arguments in toto and not just enact or amend laws haphazardly with the hope that the Federal Court will intervene to resolve any dispute, as and when it arises. This will only create unnecessary cases for law students and legal practitioners without any meaningful solution for the public.
That is not all; I foresee other problems as well.
Article 74(1) of the FC provides that Parliament may make laws with respect to any matter that is listed in the Federal List and the Concurrent List. Parliament does not have the power to make laws with respect to any matter that is listed in the State List (except for the federal territories), which, in accordance with Article 74(2) of the FC, may be made only by a State Legislative Assembly.
In short, if Parliament makes a law in any particular matter in which it does not have the power to do so, then such law, despite being a federal law, may be declared null and void by the Federal Court, and, needless to say, Article 75 cannot rescue such a law.
Let us consider the case of Mamat bin Daud v Government of Malaysia (1988). The petitioner filed a suit for a declaratory order that Section 298A of the Penal Code is invalid on the ground that it makes provision with respect to a matter which Parliament has no power to make the law. The High Court refused to grant the order and the petitioner filed an appeal.
The Supreme Court, by a majority of 3:2, allowed the appeal. Mohd Azmi, after having considered and examined the provisions of Section 298A as a whole, held that the said section is a colourable legislation in that it pretends to be a legislation on “public order”, when in pith and substance, it is a law on the subject of religion with respect to which only the states have the power to legislate under Article 74 of the FC.
To put the aforesaid discussion in the context of the amendment to the Law Reform (Marriage and Divorce) Act 1976 (“LRA”), it is highly possible therefore that the Federal Court – instead of striking down, say, the Administration of the Religion of Islam Enactment 2006 (which allows unilateral conversion of child to Islam in Perlis) under Article 75 of the FC – may declare that the proposed Section 88A LRA is null and void.
As we know, the proposed Section 88A LRA provides that in the case of one parent converting to Islam, his child shall remain a non-Muslim until and unless the other parent consents to the child’s conversion.
Since the capacity of a child to become a Muslim falls within the administration of the religion of Islam, which is a matter listed in the State List, Parliament therefore does not have the power to make any law on this matter, as explained in the case of Mamat bin Daud.
Moreover, the Federal Court in Subashini Rajasingam v Saravanan Thangathoray (2008) held that either husband or wife has the right to convert a child of the marriage to Islam since the word “parent” in Article 12(4) of the FC means a single parent.
Even if the proposed Section 88A LRA is not declared null and void, and the converted parent has converted his child to Islam without the consent of the other parent, there is still nothing the High Court can do to reverse the conversion.
In the case of Hj. Raimi bin Abdullah v Siti Hasnah Vangarama binti Abdullah (2014), the Federal Court was of the opinion that it would be highly inappropriate for the civil courts to determine the validity of the conversion of any person to the religion of Islam as this is strictly a religious issue, and, as such, the civil courts have no jurisdiction by reason of Article 121(1A) of the FC.
Interestingly, in the case of Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia (1999), the Court of Appeal was of the opinion that Article 121(1A) of the FC does not exclude the jurisdiction of the civil courts over all matters, which are also within the jurisdiction of the shariah courts. It only removes the jurisdiction of the civil courts over those matters which are within the exclusive jurisdiction of the shariah courts.
In other words, it is necessary for the High Court to be given the jurisdiction to declare that any unilateral conversion of a child to Islam by his parent, without the consent of his other parent, is null and void. This way, it cannot be said that only the shariah courts have the exclusive jurisdiction to make such a declaration, and the restriction imposed by Article 121 (1A) of the FC may be side-stepped, as explained in the case of Sukma Darmawan.
Therefore, the following amendments are necessary to put this matter to rest, once and for all:
- Article 12(4) of the FC should be amended by substituting the words “his parent or guardian” with the words “his father and mother, or his lawful guardian”;
- the relevant state laws should be amended by the respective State Legislative Assemblies so that no child in any state shall be converted to Islam unless with the consent of his father and mother, or his lawful guardian; and
- the proposed Section 88A LRA should be amended by adding the jurisdiction of the High Court to make a declaration that any unilateral conversion of a child to Islam by his parent, without the consent of his other parent, is null and void.
Shamsher Singh Thind is a law lecturer in Penang. -FMT