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Friday, June 28, 2013

'Amending FT Islamic law on conversion unconstitutional'


The amendment to the Federal Territories Islamic law tabled in Parliament for only one parent’s consent to convert a minor will first require an amendment to the federal constitution, says the Malaysian Bar.

NONEIts president Christopher Leong said that the meaning of the word ‘parent’ in the Bill should be in line with the meaning of the same word in the federal constitution - that is to refer to both parents if they are still alive.

“We reiterate that the unilateral conversion of minor children to any religion by a parent, without the consent of the non-converting parent, is contrary to our constitutional scheme," said Leong (left) in a statement today.

“The 2013 Bill should reflect the meaning of ‘parent’ as contained in Article 12(4) of the federal constitution, read with Article 160 and the Eleventh Schedule of the federal constitution, which expressly provides that all words appearing in the federal constitution which are stated in one gender also include the other gender, and all words in the singular also include the plural,” he said.
Unless Article 12(4), which deals with the religion of persons below 18 years old, is amended, then it shall be unconstitutional to violate this principle, he said.

Leong was responding on an amendment to Section 107(b) of the Administration of Islamic Law (Federal Territories), which says that the consent of one parent is enough to convert a minor to Islam, which was tabled in the current sitting of the Dewan Rakyat.

Lobbyists in cases of dispute over the conversion of minors to Islam claim that case law supports the interpretation of the reference to ‘parent’ in the laws to any one parent, and not both.
'Not authoritative interpretations of the Article 12(4)'
However, Leong said the cases, including that of Subashini Rajasingam vs Saravanan Thangathoray that was decided by the Federal Court and Nedunchelian V Uthiradam vs Nurshafiqah Mah Singai Annal and others decided by the High Court, were not authoritative interpretations of the Article 12(4).

He said the cases were dismissed on other issues and the judges’ comments on the meaning of the word ‘parent’ were part of the reasons for dismissing the cases.

“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 - other statements not required for the decision in dismissing the appeal - and is therefore not a binding statement of the law,” Leong said.

The circumstances of Nedunchelian’s case were similar, and therefore also not binding to interpretations of the word ‘parent’, he added.

In a separate statement, the Malaysian Consultative Council on Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) echoed Leong’s opinions.

“lf this interpretation (of ‘parent’ under the Bill) is advanced, then there is nothing to stop the other single parent to convert back the child to the original religion.

“No religious law can over-ride the constitution. This will produce an absurd result and therefore this cannot be meaning intended,” MCCBCHST said.

The NGO added that unilateral conversions were also morally and ethically wrong, and it called on the cabinet members to consider how would they feel if the same were to happen to their child.

In addition, it objected to Sections 51(3)(b), (x) and (xi) of the Bill, which allows the  Syariah High Court to decide whether a person is a Muslim.

“This power has always been with the Civil High Court and not the Syariah Court. The amendment thus proposed is unconstitutional,” MCCBCHST added.

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