Tuesday, June 18, 2013

Press Release: Unilateral conversions of minor children are unconstitutional


Tuesday, 18 June 2013 03:56pm
ImageThe Malaysian Bar is concerned that the controversy surrounding the unilateral conversion of minor children to the religion of Islam by a newly converted Muslim parent, without the knowledge and/or consent of the non-converting parent, has once again arisen. 

It has been reported that two children, aged 5 and 8, were converted in Negeri Sembilan in April 2013 by the estranged husband of a Hindu woman, without her knowledge.  According to her, she and her husband had contracted a civil marriage in 2004, and she was unaware that her husband had embraced Islam.  The Negeri Sembilan state Islamic Affairs Department has reportedly taken the position that consent by both parents is unnecessary, as children can be automatically converted once one parent embraces Islam.  It is noteworthy that this is reminiscent of many similar cases, including the widely publicised cases of Shamala Sathiyaseelan and Subashini Rajasingam.

The unilateral conversion of minor children to any religion by a parent, without the knowledge or consent of the non-converting parent, creates social injustice, violates the rights of the non-converting parent, and is contrary to our constitutional scheme.  In this regard:

(a) Article 12(3) of the Federal Constitution states that “No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.”; and

(b) Article 12(4) provides that “For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” (emphases added)

Article 160 governs the interpretation of the Federal Constitution, and it refers to the Eleventh Schedule (of the Federal Constitution), which states, inter alia, that “words importing the masculine gender include females”; and “words in the singular include the plural, and words in the plural include the singular”.  Therefore, Article 12(4) must be construed as requiring the religion of children (whether male or female) under the age of eighteen years to be decided by both parents, in cases where both parents are alive.  Accordingly, unilateral religious conversions of any minor children in breach of this are unconstitutional.

There is presently confusion in the Bahasa Malaysia version of Article 12(4) of the Federal Constitution.  Until 2002, the Bahasa Malaysia version, as published by the government printers, translated “parent” as “ibu bapa”, ie in the plural.  Inexplicably, in the 2002 edition of the translation of the Federal Constitution, the word “parent” was translated as “ibu atau bapa” (emphasis added).  It would also appear today that some Bahasa Malaysia translations use the term “ibu bapa” while others state “ibu atau bapa”.  Nevertheless, it would seem that the authorities are now applying this new Bahasa Malaysia translation of “parent” as “ibu atau bapa”.

This is tantamount to an unauthorised amendment or alteration of the Federal Constitution, and is itself unconstitutional.  An act of translation of the Federal Constitution cannot become an act of amendment of the Federal Constitution.  The word “parent” in Article 12(4) must be read as “ibu bapa”, as found in the pre-2002 Bahasa Malaysia translations, and which is consistent with Article 160 and the Eleventh Schedule.

The Malaysian Bar recalls the Cabinet directive announced in April 2009 through the former de facto Law Minister, Dato’ Seri Mohamed Nazri Abdul Aziz, that the children of an estranged couple should remain in the religion of the parents at the point of their marriage.  This is the correct constitutional position.  

In any event, the Government had sought to make clear and reaffirm this position with the introduction of appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976. Those draft amendments, which were discussed among the Attorney General’s Chambers, Bar Council and various civil society groups, recommended that both parents must consent to the change of religion of a minor child.  However, these proposed amendments were deferred by the Government for further consultation, and then apparently quietly forgotten.

The Malaysian Bar calls on the Government to ensure that the Bahasa Malaysia version of the Federal Constitution is corrected, so that the term “ibu bapa” is used.  The Malaysian Bar also calls on the Government to implement appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976 to further make clear and provide assurance that the consent of both parents is obtained prior to any minor children being allowed to change his or her religion.  The unilateral conversion of minor children to any religion should be unacceptable.  The Malaysian Bar urges the Government to immediately legislate to resolve this controversy, which has occasioned untold hardship and social injustice to many citizens.  

The Government must act now to put an end to this sorry state of affairs, and not remain in animated suspension in the face of human sorrow and misery. 

Christopher Leong
President
Malaysian Bar

18 June 2013

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