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Saturday, June 28, 2014

Bar: Constitution already clear on parents' consent

The federal constitution is clear on the consent of both parents needed to determine a minor's religion, and those in doubt either do not understand or are "obtuse", said Bar Council president Christopher Leong.

“Article 12(4) of the federal constitution, read with Article 160 and the Eleventh Schedule of the federal constitution, is actually clear that the consent of both parents would be required for the religious conversion of children.

“However, the recent past has shown that there are some quarters who either do not understand this or who are being obtuse,” he told Malaysiakini yesterday.

As such, he urged the government to make renewed efforts to amend the Law Reform (Marriage and Divorce) Act 1976 to make this position clear, because unilateral conversion of minors is unconstitutional.

He said the draft amendments had been discussed between the Attorney-General’s (AG) Chambers, the Bar Council, and various NGOs before.

“However, these proposed amendments were deferred by the government for further consultation, and then apparently quietly forgotten,” he said.

He was commenting on the interfaith custody cases of S Deepa and M Indira Ghandi that has escalated because of the government's refusal to enforce the respective civil court decisions awarding the non-Muslim mothers custody.

Minister in the Prime Minister’s Department Jamil Khir Baharom told the Parliament last week that according to the federal constitution, the consent of one parent is sufficient to convert minors.

However, while the relevant section of the constitution on conversion uses the word ‘parent’ in the singular form,  the Eleventh Schedule that deals with the interpretation of the constitution states that “words in the singular include the plural, and words in the plural include the singular”.

Leong said the constitution is also clear that the syariah court has jurisdiction only on Muslims in certain matters, which does not include civil marriages and therefore any related matter such as divorce, annulment, child custody and maintenance do not fall under the Islamic court.

AG intervention welcomed

On another matter, he said the AG’s move to intervene in two interfaith child custody disputes appear to be an attempt to break an impasse and resolve legal matters related to such disputes and unilateral conversions, and should be welcomed.

He said the issue have been left unresolved for too long, causing much loss and suffering.

“If it is the intention of the AG to bring constitutional questions to the Federal Court, via Article 128(2) of the federal constitution, for its decision as to which courts, civil or syariah, would have jurisdiction over such cases involving civil law subject matter and involving/affecting non-Muslims, and on the invalidity of unilateral religious conversion of minor children, then we should welcome such intervention by the AG,” he said.

Article 128(2) of the federal constitution gives the Federal Court the power to interpret the constitution if questions about it arise in another court.

Leong said while the AG does not have an automatic standing in private civil suits, the AG can apply for the court’s permission to intervene, and the permission is likely to be granted.

He said the AG may address the court in private suits if this is deemed useful and there is public interest at stake, adding the Ipoh High Court had already invited the Bar Council to address the court on M Indira Ghandi’s case because it had deemed it to be of sufficiently wide public interest.

“Given this, I do not see why the AG could not apply to intervene.

"Further and in any event, the High Court has issued orders affecting the police and/or the IGP (inspector-general of police).

"The AG is entitled to appear and represent the IGP,” he said.

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