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Wednesday, June 29, 2016

The word ‘parent’ in Article 12(4) of the constitution

Article 12(4) of the Federal Constitution says that the religion of a person under the age of eighteen years shall be decided by his parent or guardian. (italic mine)
According to the Oxford English Dictionary, the word ‘parent’ has been defined as ‘a father or mother’ (see Oxford English Dictionary Volume XI, at page 222). The emphasis is on the word ‘or’ which indicates that a parent could be either a father or mother. This is the general definition, and it is consistent with the natural relation between a parent and his or her, or their, offspring.
The Kamus Dwibahasa Oxford Fajar defines the word ‘parent’ as ‘ibubapa’. The conjunctive ‘atau’ (or) is omitted. The omission of the conjunctive word ‘or’ is baffling.
It is common that ordinary dictionary definition of words could be different from the definition attributed to certain words in an Act of Parliament or a State Enactment. Thus, it is not uncommon that every statute would carry a section defining certain words to avoid confusion in the construction of a sentence within a particular context. Thus a word may indicate a meaning different from traditionally accepted dictionary versions.
Aside from this, there is also the Interpretation Acts 1948 and 1967 which assign meanings to words used in the statutes in general, and in a particular manner.
What has been troubling the judiciary, the legal profession and the public generally is the word ‘parent’ expressed in singular in Article 12(4). How do you define it? Is it rigidly singular, meaning any one parent can decide the religion of a person under the age of eighteen years, or, the expression ‘parent’ in singular includes the plural meaning, ‘parents’. In other words would one parent’s consent be satisfied under Article 12(4) or both must consent?
Article 160 of the Federal Constitution deals with interpretation, and it provides specific meanings to words used in the Constitution. Article 160(1) refers to the Eleventh Schedule to the constitution and states that the meanings given there shall apply. And the Eleventh Schedule states that the “words in the singular include the plural, and words in the plural include the singular”.
In this context section 4(3) of the Interpretation Acts 1948 and 1967 states the same eg.:
“Words and expressions in the singular include the plural, and words and expressions in the plural include the singular.”
And the Bahasa version states:
“Perkataan dalam bilangan tunggal termasuklah bilangan jamak, dan perkataan dalam bilangan jamak termasuklan bilangan tunggal.”
Going by these definitions, where words and expressions are in singular they include plural and plural include singular is constitutionally and commonly accepted legal position.
The constitution which was in English was translated into the national language and to give effect to the translation Article 160B was inserted, which came into effect on Sept 28, 2001. It reads:
“Where this constitution has been translated unto the national language, the Yang di-Pertuan Agong may prescribe such national language text to be authoritative, and thereafter if there is any conflict or discrepancy between such national language text and the English language text of this constitution, the national language text shall prevail over the English language text.”
The Bahasa version is as follows:
“Jika Perlembagaan ini telah diterjemahkan ke dalam bahasa kebangsaan, Yang di-Pertuan Agong boleh menetapkan teks bahasa kebangsaan itu sebagai teks sahih, dan selepas itu, jika ada percanggahan atau perselisihan antara teks bahasa kebangsaan itu dengan teks bahasa Inggeris Perlembagaan ini, teks bahasa kebangsaan itu hendaklah mengatasi teks bahasa Inggeris itu.”
Translated as ‘ibu atau bapa’
The English expression of the word ‘parent’ in 12(4) read together with the Eleventh Schedule and Section 4(3) of the Interpretation Acts 1948 and 1967 would have cleared any confusion; but, confusion did germinate with the translation of the constitution. Particularly, the word ‘parent’ has been translated as ‘ibu atau bapa’ (mother or father). The National language version is as follows:
“Bagi maksud Fasal (3) agama seseorang yang di bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya.” (italics mine)
When this Bahasa version clause is translated into English it would read:
“For the purposes of clause (3) the religion of a person under the age of eighteen years shall be decided by his father or mother or guardian.”
This is clear distortion of the actual wording of 12(4), and it was not the intention of Parliament to deprive one parent the right to decide if a person under eighteen years old. Thus the broad and objective meaning of the word ‘parent’ was lost in the translation.
The vast difference between the English version and Bahasa Malaysia version of Article 12(4) has been the source for the confusion that had troubled the judiciary and the legal profession for far too long. The English version when read together with Article 160(1) and the Interpretation Acts 1948 and 1967 clearly points to the fact that the religion of a person under the age of eighteen shall be decided by his parents.
But, when we read the Bahasa version of Article 12(4) either father or mother could decide the religion of a person under the eighteen years, the original effect and intention had been lost. Common sense would dictate that the intention of Parliament in formulating clause 12(4) was to empower both parents and not to a single parent to decide the religion of their child under eighteen years old.
For the sake of argument it could be said that a single parent could decide the religion of a person under eighteen years if one of the other biological parents, or one of the legally adoptive parents had died. In the case of an illegitimate child only the mother has the right to decide on the child’s religious status, not the father.
One would wonder as to how did this legal pickle come about. The translator, it would seem, had chosen the direct meaning of the word ‘parent’ without looking at the confusion that may entail. It would also seem that the translator had not considered the multi-racial and multi religious composition of the Malaysian society.
On the other hand, the framers of the English version of the Constitution, and in particular Article 12(4) did not appreciate that religious sentiments could seep into simple words and be the source for painful legal wrangle and predicament. To confound the problem we have the Istilah Undang-Undang which omitted to define the word ‘parent’ but defined the word ‘parents’ meaning ‘ibu bapa’.
Next level of confusion
The next level of confusion could be seen in the State Enactments. In the State Enactments relating the Administration of Islam most of the States use the words ‘ibu atau bapa’ to consent the conversion of a person under eighteen years old. Penang, Selangor, Sabah use ‘ibu dan bapa’ to consent the conversion of a person under eighteen years old.
The error in the translation of Article 12(4) is too obvious whereby the translation has ignored the changing nature when words are expressed in singular or plural. The English version, in its original form, allowed the inclusion of both parents whereas the Bahasa version excluded one parent, be it father or mother. By this translation, the objective of the meaning of the word, in singular or plural has lost its significance.
Even though the error is glaring at us, there are some who hold that the consent in Article 12(4) could be from either parent based on the Bahasa version of that Article, and reliance is placed on Article 160B which states that where there is a conflict or discrepancy between such national language text and the English language text of the Constitution, the national language text shall prevail over the English language text.
If this provision is followed, it means that a wrong could be perpetuated notwithstanding the injustice it could cause. Parliament could and should correct this.
On the other hand, it cannot be said that the courts are bound by the wrong translation. The courts could right the wrong bearing in mind the intention of the legislature which must have considered the multi-racial, multi-religious composition of this country, and the likelihood of conflicts surfacing between parents from time to time in consequences of one parent converting to Islam and the other electing to remain in the original faith.
Therefore, to cling on to the flawed translation reminds us of Humpty Dumpty’s arrogance.
“I don’t know what you mean by ‘glory’,” Alice said.
Humpty Dumpty smiled contemptuously, “Of course you don’t - till I tell you. I meant “there’s a nice knock-down argument for you!”
“But “glory” doesn’t mean “a nice knock-down argument”,” Alice objected.
“When I use a word,” Humpty Dumpty said in a rather scornful tone, it means just what I choose it to mean - neither more nor less.”
(Through the Looking Glass. Lewis Carroll - The complete Works, p 174)
This is precisely what is happening in interpreting Article 12(4).

K SILADASS is a practising lawyer.

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